LaVigne inquiry in Alaska

2023The court then conducted the required LaVigne inquiry to make sure that Martinez understood that he had a right to testify and that this right belonged to him, not his attorney.6 After giving Martinez additional time to consult 5 There was one Spanish language interpreter for the first two days of trial and two Spanish language interpreters for the last three days. 6 LaVigne v. State, 812 P.2d 217, 222 (Alaska 1991) (holding that “judges should make an on-the-record inquiry after the close of the defendant’s case, although out of the jury’s hearing, into whether a nontestifying defendant under

1998In LaVigne v. State, 812 P.2d 217, 219 (Alaska 1991), the Alaska Supreme Court declared that “[t]he ultimate decision whether to exercise the right [to testify at trial or the right to remain silent] rests with the defendant, not with defendant’s counsel.” For this reason, the supreme court established what is now known as the LaVigne rule.

2023Moreover, Martinez was willing to use one of his previous Spanish interpreters for his allocution at sentencing. 10 Mute, 954 P.2d at 1387 . 11 Id. at 1386-87 (quoting Knix v. State, 922 P.2d 913 , 918 n.6 (Alaska App. 1996)). 12 Id. at 1387; Knix, 922 P.2d at 918 n.6 (discussing the necessary limitations of the LaVigne inquiry); Trout, 377 P.3d at 300 (reviewing how despite the limited scope of a judicial inquiry, a “defendant may nevertheless perceive the judge’s advisement and questioning, not as inquiry into the voluntariness of the defendant’s decision to testify, but rather as an implied

2023Moreover, Martinez was willing to use one of his previous Spanish interpreters for his allocution at sentencing. 10 Mute, 954 P.2d at 1387 . 11 Id. at 1386-87 (quoting Knix v. State, 922 P.2d 913 , 918 n.6 (Alaska App. 1996)). 12 Id. at 1387; Knix, 922 P.2d at 918 n.6 (discussing the necessary limitations of the LaVigne inquiry); Trout, 377 P.3d at 300 (reviewing how despite the limited scope of a judicial inquiry, a “defendant may nevertheless perceive the judge’s advisement and questioning, not as inquiry into the voluntariness of the defendant’s decision to testify, but rather as an implied

2023Moreover, Martinez was willing to use one of his previous Spanish interpreters for his allocution at sentencing. 10 Mute, 954 P.2d at 1387 . 11 Id. at 1386-87 (quoting Knix v. State, 922 P.2d 913 , 918 n.6 (Alaska App. 1996)). 12 Id. at 1387; Knix, 922 P.2d at 918 n.6 (discussing the necessary limitations of the LaVigne inquiry); Trout, 377 P.3d at 300 (reviewing how despite the limited scope of a judicial inquiry, a “defendant may nevertheless perceive the judge’s advisement and questioning, not as inquiry into the voluntariness of the defendant’s decision to testify, but rather as an implied

2023Moreover, Martinez was willing to use one of his previous Spanish interpreters for his allocution at sentencing. 10 Mute, 954 P.2d at 1387 . 11 Id. at 1386-87 (quoting Knix v. State, 922 P.2d 913 , 918 n.6 (Alaska App. 1996)). 12 Id. at 1387; Knix, 922 P.2d at 918 n.6 (discussing the necessary limitations of the LaVigne inquiry); Trout, 377 P.3d at 300 (reviewing how despite the limited scope of a judicial inquiry, a “defendant may nevertheless perceive the judge’s advisement and questioning, not as inquiry into the voluntariness of the defendant’s decision to testify, but rather as an implied

1994A failure to comply with the LaVigne rule is harmful, not because that failure by itself proves that a defendant’s constitutional right was abridged, but because the failure makes it harder to determine the facts underlying the defendant’s claim of constitutional violation. *199 As the Supreme Court of Colorado stated in People v. Curtis, 681 P.2d 504 (Colo.1984), when it rejected retroactive application of its own on-the-record inquiry rule: While a primary purpose of placing the ... waiver on the record is to improve the accuracy of verdicts, a silent record in a trial [held] before our deci

1994A failure to comply with the LaVigne rule is harmful, not because that failure by itself proves that a defendant’s constitutional right was abridged, but because the failure makes it harder to determine the facts underlying the defendant’s claim of constitutional violation. *199 As the Supreme Court of Colorado stated in People v. Curtis, 681 P.2d 504 (Colo.1984), when it rejected retroactive application of its own on-the-record inquiry rule: While a primary purpose of placing the ... waiver on the record is to improve the accuracy of verdicts, a silent record in a trial [held] before our deci

2023App. Div. 2005) (finding defendant’s proficiency in Spanish sufficient to allow him to proceed to trial with Spanish interpreters, despite fact that defendant’s native language was Quiche, a Guatemalan dialect, because interpreters felt they could communicate, and there was evidence that the defendant had been speaking Spanish with co-workers for previous two years and that he had been taught partly in Spanish in his native country); Martins v. State, 52 S.W.3d 459, 470, 471-73 (Tex. Crim.

2023In support of these criticisms, Martinez cites to State v. Han, a case from the Hawai’i Supreme Court, which held that a heightened level of care applies to the Hawaiian version of the LaVigne inquiry in cases that involve “language barriers.”14 Martinez argues that this Court should adopt a similar heightened level of care for LaVigne inquiries involving defendants who are not native English speakers. 14 State v. Han, 306 P.3d 128, 137 (Haw. 2013), as corrected (July 10, and July 31, 2013). – 14 – 2748 We agree with Martinez that, as a general matter, a trial court should take extra steps to

2023In support of these criticisms, Martinez cites to State v. Han, a case from the Hawai’i Supreme Court, which held that a heightened level of care applies to the Hawaiian version of the LaVigne inquiry in cases that involve “language barriers.”14 Martinez argues that this Court should adopt a similar heightened level of care for LaVigne inquiries involving defendants who are not native English speakers. 14 State v. Han, 306 P.3d 128, 137 (Haw. 2013), as corrected (July 10, and July 31, 2013). – 14 – 2748 We agree with Martinez that, as a general matter, a trial court should take extra steps to

2023Martinez argues specifically that the trial court failed to adequately define the term “testify.” At the beginning of the LaVigne inquiry, Martinez expressed confusion over the word “testify.” The trial court then provided the following explanation: 13 See, e.g., Falak v. State, 583 S.E.2d 146, 149-50 (Ga. App. 2003) (finding no violation of right to testify and to meaningfully participate in trial when defendant spoke a different dialect of Arabic than the Syrian interpreter, but interpreter said he understood defendant and defendant did not express any difficulty understanding translations a

2023Moreover, Martinez was willing to use one of his previous Spanish interpreters for his allocution at sentencing. 10 Mute, 954 P.2d at 1387 . 11 Id. at 1386-87 (quoting Knix v. State, 922 P.2d 913 , 918 n.6 (Alaska App. 1996)). 12 Id. at 1387; Knix, 922 P.2d at 918 n.6 (discussing the necessary limitations of the LaVigne inquiry); Trout, 377 P.3d at 300 (reviewing how despite the limited scope of a judicial inquiry, a “defendant may nevertheless perceive the judge’s advisement and questioning, not as inquiry into the voluntariness of the defendant’s decision to testify, but rather as an implied

2023Moreover, Martinez was willing to use one of his previous Spanish interpreters for his allocution at sentencing. 10 Mute, 954 P.2d at 1387 . 11 Id. at 1386-87 (quoting Knix v. State, 922 P.2d 913 , 918 n.6 (Alaska App. 1996)). 12 Id. at 1387; Knix, 922 P.2d at 918 n.6 (discussing the necessary limitations of the LaVigne inquiry); Trout, 377 P.3d at 300 (reviewing how despite the limited scope of a judicial inquiry, a “defendant may nevertheless perceive the judge’s advisement and questioning, not as inquiry into the voluntariness of the defendant’s decision to testify, but rather as an implied

2023Martinez argues specifically that the trial court failed to adequately define the term “testify.” At the beginning of the LaVigne inquiry, Martinez expressed confusion over the word “testify.” The trial court then provided the following explanation: 13 See, e.g., Falak v. State, 583 S.E.2d 146, 149-50 (Ga. App. 2003) (finding no violation of right to testify and to meaningfully participate in trial when defendant spoke a different dialect of Arabic than the Syrian interpreter, but interpreter said he understood defendant and defendant did not express any difficulty understanding translations a

2019The court of appeals Alvarez-Perdomo appealed his convictions to the court of appeals.4 He argued “that the trial judge forced him to testify at his trial, thus violating his constitutional right not to be compelled to incriminate himself.”5 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 concluded that the superior court committed constitutional error by compelling Alvarez- Perdomo to take the stand.6 The court of appeals began by explaining that during the superior court’s LaVigne inquiry it inappropriately pressured A

2019The court of appeals Alvarez-Perdomo appealed his convictions to the court of appeals.4 He argued “that the trial judge forced him to testify at his trial, thus violating his constitutional right not to be compelled to incriminate himself.”5 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 concluded that the superior court committed constitutional error by compelling Alvarez- Perdomo to take the stand.6 The court of appeals began by explaining that during the superior court’s LaVigne inquiry it inappropriately pressured A

2019The court of appeals Alvarez-Perdomo appealed his convictions to the court of appeals.4 He argued “that the trial judge forced him to testify at his trial, thus violating his constitutional right not to be compelled to incriminate himself.”5 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 concluded that the superior court committed constitutional error by compelling Alvarez- Perdomo to take the stand.6 The court of appeals began by explaining that during the superior court’s LaVigne inquiry it inappropriately pressured A

2019The court of appeals Alvarez-Perdomo appealed his convictions to the court of appeals.4 He argued “that the trial judge forced him to testify at his trial, thus violating his constitutional right not to be compelled to incriminate himself.”5 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 concluded that the superior court committed constitutional error by compelling Alvarez- Perdomo to take the stand.6 The court of appeals began by explaining that during the superior court’s LaVigne inquiry it inappropriately pressured A

2019The court of appeals Alvarez-Perdomo appealed his convictions to the court of appeals.4 He argued “that the trial judge forced him to testify at his trial, thus violating his constitutional right not to be compelled to incriminate himself.”5 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 concluded that the superior court committed constitutional error by compelling Alvarez- Perdomo to take the stand.6 The court of appeals began by explaining that during the superior court’s LaVigne inquiry it inappropriately pressured A

2019The court of appeals Alvarez-Perdomo appealed his convictions to the court of appeals.4 He argued “that the trial judge forced him to testify at his trial, thus violating his constitutional right not to be compelled to incriminate himself.”5 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 concluded that the superior court committed constitutional error by compelling Alvarez- Perdomo to take the stand.6 The court of appeals began by explaining that during the superior court’s LaVigne inquiry it inappropriately pressured A

2016See, e.g., People v. Curtis, 681 P.2d 504, 513-14 (Colo.1984); Tachibana v. State, 79 Hawai'i 226 , 900 P.2d 1293, 1303 (1995); State v. Orr, 304 S.C. 185 , 403 S.E.2d 623, 624-25 (1991) overruled on other grounds by Franklin v. Catoe, 346 S.C. 563 , 552 718, 725 (2001); State v. Neuman, 179 W.Va 580 371 S.E.2d 77, 82 (1988). 11 .

2016See, e.g., People v. Curtis, 681 P.2d 504, 513-14 (Colo.1984); Tachibana v. State, 79 Hawai'i 226 , 900 P.2d 1293, 1303 (1995); State v. Orr, 304 S.C. 185 , 403 S.E.2d 623, 624-25 (1991) overruled on other grounds by Franklin v. Catoe, 346 S.C. 563 , 552 718, 725 (2001); State v. Neuman, 179 W.Va 580 371 S.E.2d 77, 82 (1988). 11 .

2016See, e.g., People v. Curtis, 681 P.2d 504, 513-14 (Colo.1984); Tachibana v. State, 79 Hawai'i 226 , 900 P.2d 1293, 1303 (1995); State v. Orr, 304 S.C. 185 , 403 S.E.2d 623, 624-25 (1991) overruled on other grounds by Franklin v. Catoe, 346 S.C. 563 , 552 718, 725 (2001); State v. Neuman, 179 W.Va 580 371 S.E.2d 77, 82 (1988). 11 .

2016See, e.g., People v. Curtis, 681 P.2d 504, 513-14 (Colo.1984); Tachibana v. State, 79 Hawai'i 226 , 900 P.2d 1293, 1303 (1995); State v. Orr, 304 S.C. 185 , 403 S.E.2d 623, 624-25 (1991) overruled on other grounds by Franklin v. Catoe, 346 S.C. 563 , 552 718, 725 (2001); State v. Neuman, 179 W.Va 580 371 S.E.2d 77, 82 (1988). 11 .

2016Id.; see also Hurn v. State, 872 P.2d 189, 198 (Alaska App.1994) ("A failure to comply with the LaVigne rule is harmful, not because that failure by itself proves that a defendant's constitutional right was abridged, but because the failure makes it harder to determine the facts underlying the defendant's [post-conviction] claim of constitutional violation."). 10 .

2016Id.; see also Hurn v. State, 872 P.2d 189, 198 (Alaska App.1994) ("A failure to comply with the LaVigne rule is harmful, not because that failure by itself proves that a defendant's constitutional right was abridged, but because the failure makes it harder to determine the facts underlying the defendant's [post-conviction] claim of constitutional violation."). 10 .

2016See, e.g., People v. Curtis, 681 P.2d 504, 513-14 (Colo.1984); Tachibana v. State, 79 Hawai'i 226 , 900 P.2d 1293, 1303 (1995); State v. Orr, 304 S.C. 185 , 403 S.E.2d 623, 624-25 (1991) overruled on other grounds by Franklin v. Catoe, 346 S.C. 563 , 552 718, 725 (2001); State v. Neuman, 179 W.Va 580 371 S.E.2d 77, 82 (1988). 11 .

2016See, e.g., People v. Curtis, 681 P.2d 504, 513-14 (Colo.1984); Tachibana v. State, 79 Hawai'i 226 , 900 P.2d 1293, 1303 (1995); State v. Orr, 304 S.C. 185 , 403 S.E.2d 623, 624-25 (1991) overruled on other grounds by Franklin v. Catoe, 346 S.C. 563 , 552 718, 725 (2001); State v. Neuman, 179 W.Va 580 371 S.E.2d 77, 82 (1988). 11 .

1994As this court noted in its opinion, LaVigne v. State, 788 P.2d 52, 54 (Alaska App.1990), “Generally, courts seem reluctant to require the trial judge to determine on the record whether the defendant understands his right to testify and ... has ... knowingly and intelligently waived [that right].” Our supreme court departed from traditional jurisprudence on this issue when it joined the ranks of states requiring an on-the-record inquiry.

1994As this court noted in its opinion, LaVigne v. State, 788 P.2d 52, 54 (Alaska App.1990), “Generally, courts seem reluctant to require the trial judge to determine on the record whether the defendant understands his right to testify and ... has ... knowingly and intelligently waived [that right].” Our supreme court departed from traditional jurisprudence on this issue when it joined the ranks of states requiring an on-the-record inquiry.