Opinion
Court of Appeals No. A-11524 Trial Court No. 3AN-12-1004 CR No. 6016
01-29-2014
LEWIS JORDAN JR., Appellant, v. STATE OF ALASKA, Appellee.
Doug Miller, Law Office of Douglas S. Miller, for the Appellant. Patrick F. Sherry, Assistant District Attorney, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINION
Appeal from the District Court, Third Judicial District, Anchorage, Leonard M. Linton, Judge.
Appearances: Doug Miller, Law Office of Douglas S. Miller, for the Appellant. Patrick F. Sherry, Assistant District Attorney, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.
Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).
Judge HANLEY.
At his trial on several misdemeanor charges, Lewis Jordan Jr. elected not to testify after he was advised by the trial judge that he had the right to testify in his defense. Jordan now argues that he is entitled to reversal of his convictions under LaVigne v. State because the judge did not take adequate steps to ensure that his decision to not testify was voluntary. Specifically, Jordan asserts that once he told the judge that he was not testifying because his attorney threatened to tell the jury he was a liar, the judge should have questioned his attorney about this alleged threat and taken curative action.
812 P.2d 217 (Alaska 1991).
The record establishes that the trial judge conducted a thorough inquiry under LaVigne and that Jordan voluntarily waived his right to testify. We therefore affirm Jordan's convictions.
Facts and proceedings
Jordan was charged with third-degree theft and fourth-degree criminal mischief. On the first day of his trial, before jury voir dire, District Court Judge Leonard M. Linton Jr. explained to Jordan that he had the right to testify in his defense and that this decision was his alone, although he could seek his attorney's advice. Jordan said he understood that he had this right.
AS 11.46.140(a)(1).
AS 11.46.484(a)(1).
The next day, after the State had begun the presentation of its case, Jordan informed the judge outside the presence of the jury that he and his attorney were not "getting along on [his] defense." Jordan said "[my attorney] is telling me that if I get up and testify, he's going to tell y'all that I'm a damn liar." The judge assured Jordan that his attorney was "not permitted to do that."
After the close of the State's case, Judge Linton explained to Jordan in more detail his right to testify. Jordan told the judge he understood that, regardless of what his attorney advised, he had the right to take the stand. But he said he had decided not to testify because his attorney had threatened to tell the jury he was a liar if he did. The judge again assured Jordan that this would not happen:
Court: [Y]our lawyer cannot say that and will not say that, and if he does say it, it would be a mistrial and we'd start the whole thing over again, because it would be that unfair for him to say that to the jury — [do] you understand that? In other words, this isn't something where you can get tricked, where you can get up there and testify and then he goes ahead and does it, says you're lying to the jury. If that happened I would — I would declare a mistrial, because that would be improper conduct ... on the part of your lawyer, which would be unfair to you.The judge continued to question Jordan along these same lines, asking him several times if his decision to not testify would change if he knew his attorney would not be permitted to tell the jury that he was lying. Jordan would not answer the judge's question directly; instead he repeated that he was not testifying because his attorney had threatened him and he was scared to testify.
Jordan: Well ....
Court: Does that change your mind about what you want to do?
Jordan: I'm scared for him to do that, so yes, that does change my mind. It's why I ain't testifying.
Court: But what I'm saying is, he can't hurt you that way.
Jordan: That's the reason why, sir. I feel....
Court: All right. And this is your decision? This is a decision you want to make?
Jordan: Yes. I'm scared to testify. Yes, it's my decision.
The jury convicted Jordan of both charges. He appeals.
Is Jordan entitled to reversal under LaVigne v. State?
Jordan argues that his decision to not testify was involuntary because it was the direct result of his attorney's threat to tell the jury he was a liar if he took the stand.
A criminal defendant has a constitutional right to testify on his own behalf,and that right is "both personal to the criminal defendant and fundamental to the dignity and fairness of the judicial process." Because of the fundamental importance of this right, the Alaska Supreme Court in LaVigne directed trial judges to "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." Under what is now known as the LaVigne rule,
Rock v. Arkansas, 483 U.S. 44, 52-53 (1987); Hughes v. State, 513 P.2d 1115, 1119 (Alaska 1973).
LaVigne, 812 P.2d at 219.
Id. at 222.
Whenever the defense indicates an intention to rest without presenting the defendant's testimony, the trial judge must advise the defendant personally that, regardless of the defense attorney's advice on this point, the choice whether or not to testify rests with the defendant. After making sure that the
defendant understands this, the judge must then inquire whether the defendant voluntarily waives the right to testify.
Mute v. State, 954 P.2d 1384, 1386 (Alaska App. 1998).
LaVigne does not address what a trial judge should do when a defendant insists that his decision to not testify is not voluntary. But in Knix v. State we discussed a trial judge's duty in this circumstance:
922 P.2d 913 (Alaska App. 1996).
A trial judge faced with a defendant who ... voices fears of reprisal as a consequence of testifying — even vague and insubstantial fears — must do everything realistically possible to delve into the issue and elicit an informed, voluntary choice. To this end, the judge should invite a full disclosure by the defendant and the defendant's counsel of any purported threat, offer to invoke the full weight of the court's protective powers against the source of any threat, and conduct a thorough inquiry in response to any information disclosed. The judge should also ensure that the defendant has been provided an adequate opportunity to consult with counsel concerning any potential threats or pressure and should take appropriate measures in the event that an active conflict of interest between client and attorney comes to light.
Id. at 919.
Jordan argues that Judge Linton failed to make the inquiry required by Knix because the judge did not directly question his attorney about the alleged threat. But Judge Linton faced a different situation than the judge in Knix. The defendants in Knix made only "veiled, conclusory references to threats," and they refused to substantiate those allegations despite the judge's repeated inquiries and assurances that he would take appropriate curative action. In that circumstance, it made sense for the judge to question the defendants' attorneys to see if they could shed additional light on the source and nature of the alleged threats. Jordan's case is different, in that Jordan told Judge Linton precisely what he perceived the threat to be. Judge Linton did not question the truth of that allegation; instead, the judge assured Jordan that his attorney could not, and would not, follow through on the alleged threat and that, if he did, the court would order a mistrial.
Id. at 917.
Jordan argues that Judge Linton should have told his attorney that it was impermissible both to make such a threat and to carry it out. But the trial judge told Jordan, in his attorney's presence, that his attorney "cannot say that and will not say that, and if he does say it, it would be a mistrial and we'd start the whole thing over again, because it would be that unfair for him to say that to the jury." This was tantamount to telling the attorney directly that such a threat was improper. Nothing more would have been accomplished by questioning the defense attorney — particularly in the absence of any suggestion by Jordan that a personal assurance from his attorney would have affected his decision whether to testify.
We note that the judge had good reason to limit discussion of the content, or truth, of Jordan's prospective testimony, even ex parte, if that discussion was not necessary to ensure Jordan's voluntary waiver of his right to testify, because of the importance of maintaining attorney-client confidences, and because of the potential that such disclosures could prejudice Jordan at sentencing.
See Comment, Alaska R. Prof. Conduct 3.3 at 899 (Alaska Rules of Court 2013-14).
See Coleman v. State, 621 P.2d 869, 883 (Alaska 1980).
Furthermore, Judge Linton reasonably could have concluded based on the record in this case that Jordan had other reasons for not testifying. When the judge first asked Jordan if anyone had threatened him, or made promises to him, to prevent him from testifying, Jordan said: "In a way. But I still don't want to testify." When the court then asked Jordan who made the threat or the promise, Jordan said: "I already told you that, but it doesn't matter." Jordan also asserted at one point that "this court" made him afraid to testify. The record shows that Jordan refused to accept the judge's repeated assurances that his attorney could not, and would not, tell the jury he was a liar. Jordan also refused to give the judge a direct answer when asked if he would change his decision to not testify if the court guaranteed that his attorney could not follow through on the threat.
Jordan separately argues that the trial judge's anticipatory announcement that he would order a mistrial if his attorney told the jury he was a liar was "premature and improper." Jordan does not argue that the prospect of a mistrial discouraged him from testifying; rather, he argues that the court erred by deciding that a mistrial was the proper remedy before the circumstances required a mistrial. We have no basis for addressing this claim in the absence of any specific assertion of prejudice. As Jordan points out, none of the circumstances requiring a mistrial came to pass.
Moreover, Jordan's argument ignores the context in which the judge's statement was made: Judge Linton told Jordan he would order a mistrial not because he was ruling on the issue in advance but rather to underscore the court's repeated assurances that Jordan's attorney could not ethically, and would not actually, follow through on his alleged threat to tell the jury Jordan was a liar. Judge Linton's approach comported with our directive in Knix that a judge faced with the allegation that a defendant fears reprisal as a consequence of testifying should bring the "full weight of the court's protective powers against the source of any threat."
Knix, 922 P.2d. at 919.
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The record shows that Judge Linton conducted a thorough inquiry to ensure that Jordan's decision to not testify was knowing and voluntary, and that Jordan's decision was in fact knowing and voluntary. We therefore conclude that there was no LaVigne violation in this case.
Conclusion
The judgment of the district court is AFFIRMED.