State v. Garrett

299 Or.App. 744

451 P.3d 612

STATE of Oregon, Plaintiff-Respondent,

v.David Michael GARRETT, Defendant-Appellant.

A162521 (Control), A163053

Court of Appeals of Oregon.

Argued and submitted March 22, 2018.

October 9, 2019

Kyle Krohn, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Patrick M. Ebbett, Assistant Attorney General, argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

DEHOOG, J.

In these consolidated cases, defendant appeals judgments convicting him of first-degree theft, ORS 164.055, and supplying contraband, ORS 162.185.¹ Defendant assigns error to three rulings of the trial court, contending that the court erred in (1) requiring him to represent himself at trial without a knowing and intentional waiver of counsel, thereby violating his rights under ORS 135.045,² Article I, section 11, of the Oregon Constitution,³ and the Sixth Amendment to the United States Constitution;⁴ (2) rejecting his request to waive his right to a jury trial; and (3) instructing the jury that it could reach a nonunanimous verdict. As to the first assignment of error, defendant argues that he did not knowingly waive his right to counsel, because he was neither warned of the inherent risks of self-representation by the trial court nor otherwise aware of those risks, and that any waiver of that right was not intentional, because the trial court did not provide an advanced warning that his conduct could be deemed a waiver of his right to counsel. The state responds that defendant’s repeated requests for counsel, his observation of tasks and duties that counsel perform on behalf of defendants, and his evident understanding of the primary weaknesses of his case collectively demonstrate that he understood the risks of self-representation sufficiently to be able to knowingly waive counsel. The state further contends that, because the trial court provided defendant with multiple warnings that his conduct towards his attorneys was placing him at risk of losing his right to counsel, his ultimate waiver of that right was intentional. We conclude that the record reflects that defendant understood the material risks of self-representation associated with his case and that the trial court provided adequate advance warning that his conduct could result in a loss of the right to counsel. Therefore, writing only to address the first assignment of error, we affirm.⁵

"If a trial court grants a motion to withdraw and does not appoint substitute counsel, thus requiring the criminal defendant to proceed pro se , we review for error of law whether the defendant has knowingly and intentionally waived his or her right to counsel." State v. Langley , 351 Or. 652, 666, 273 P.3d 901 (2012). In addressing that legal question, however, we review the validity of the waiver of counsel "in light of the circumstances of [a defendant’s] particular case." State v. Borba , 290 Or. App. 787, 795, 417 P.3d 430 (2018) (internal quotation marks omitted). In this case, a full understanding of the relevant circumstances requires us to review in some detail the procedural history leading up to the denial of defendant’s ultimate request for appointed counsel.

The relevant facts are largely undisputed, with one exception that we note below. Defendant was charged with first-degree theft for stealing a chainsaw from a neighborhood store and selling it to a nearby pawn shop. When a detective investigating the theft spoke to defendant about it, defendant immediately volunteered that he had stolen the chainsaw from the store and sold it to the pawn shop. Defendant was later arrested and taken to jail, where he remained pending trial. At defendant’s request, the trial court appointed counsel to represent him. However, at a hearing held on August 25, 2015, defendant sought in open court to fire the attorney appointed to represent him, Collins, which led to the following exchange:

"[DEFENDANT]: I want a new attorney and if I see this bitch and she come back tomorrow, I’m gonna end up sockin’ her.

"* * * * *

"COURT: Alright. [Defendant]? I’m deeply offended by what you just said. I would consider that a direct threat toward Ms. Collins. I want you to know you’re gonna get one attorney and that’s it * * *."

The trial court released Collins and subsequently appointed a new attorney, Scales, to represent defendant. At a hearing held on September 11, 2015, however, the court also released Scales from the case. The parties dispute whether the court’s decision to release Scales was due, at least in part, to threats defendant had made against him. During the September 11 hearing, Scales informed the trial court that defendant had expressed a desire for a new attorney. Scales also reported that, before he and defendant first met, Scales had been told by jail staff that defendant was prepared to "beat [his] ass." Scales then met with defendant through a glass partition, during which time defendant cursed at Scales and refused to cooperate with him. At the hearing, the trial court permitted defendant to tell his side of the story, and defendant claimed that Scales was the one who had initiated the profanity and that defendant had never threatened to punch him.

"COURT: Did you tell somebody you were going to punch somebody? If you lie to me, you’re going to be held in contempt.

"* * * * *

"[DEFENDANT]: No, I didn’t!

"COURT: Okay. If I find out otherwise, you’re gonna be held in contempt of court and you’re gonna be doing a lot more time * * *.

"* * * * *

"COURT: If that’s your final answer, then I’m going to accept it. But if I find out otherwise, I’m holding you in contempt of court."

Although the trial court purported to accept defendant’s version of what had happened with Scales, the court also made it clear to defendant that, in its view, he was causing the conflicts with his attorneys and that it believed "Mr. Scales when he tells [the court] that * * * these problems were made." Scales clarified for the court that he had only heard potential threats from jail deputies and that defendant had not made any threats to him when they met in person. Nonetheless, the trial court released Scales without specifically explaining its decision to do so. However, the court did tell defendant that "we’re not going to continue putting people in front of you just so you can get upset and want to fight." Accordingly, the trial court refused to appoint another attorney for defendant and told him that he would have to hire his own attorney or represent himself at subsequent hearings. Consistent with that ruling, defendant indicated at a hearing held before a different judge on September 21, 2015, that he was representing himself, and the parties proceeded to select trial dates. On October 1, 2015, however, the trial court reversed its earlier decision and appointed a third attorney to represent defendant. The trial court placed certain conditions on its decision to assign defendant yet another attorney:

"COURT: Alright. I want to make it very clear, [defendant], ‘cause you’ve got a lot of cases and you threatened to punch one [attorney] on the record with me. Don’t even deny it, because it’s recorded.

"* * * * *

"COURT: And then it’s my understanding with Mr. Scales, you refused to meet with him. So, I’m just putting these things on the record because you have caused the delay of your case. So, you have no speedy trial issues. So, I’m just making a record for this. Alright? So, both of those people were fired because of your actions. I will appoint another attorney to represent you, but if any of those shenanigans go on and they are forced to withdraw, you’re not getting another court-appointed attorney. Is that clear?

"[DEFENDANT]: Yes."

Ultimately, defendant’s third attorney, Murphy, was forced to withdraw from the case on January 13, 2016, due to personal reasons, and the court appointed a fourth attorney, Claar, to represent defendant. At a pretrial hearing held the day before trial, however, defendant again expressed dissatisfaction with his appointed counsel and asked the court to replace Claar. Defendant was concerned by Claar’s statement that he was only representing defendant because a judge had forced him to and that he would not otherwise represent defendant "for anything in the world." Claar clarified that he had told defendant that he would not take the case privately for any reason but was representing defendant as a court-appointed attorney. Claar further explained:

"Well, Your Honor, I was just going to point out that the difficulty you’re having with him right now is essentially what I’m experiencing, only on a level ten times more and with very much more colorful language and vague threats. So, * * * it’s to the point where I believe that there is a possible conflict, even with me going forward on it; [defendant] has informed me he’s filed a bar complaint against me and that he * * * said, * * * he better not see me in court, I better not come ‘F-ing’ near him. He’s not making specific threats, but at the same time, I don’t want to be the next person to walk down that back hallway behind the courtroom with a pen to my throat. You know? So, you know, and sitting at the table there with someone who’s saying these types of things and being so confrontational with me."

Claar later added:

[Defendant] has told me that * * *, in very colorful words, that he better not ‘F-ing’ see me at trial, [I] better not ‘F-ing’ come near [him] or else. And just ranting and raving, and cussing me out."

After specifically noting Claar’s reference to a potential bar complaint, the trial court decided to release him from any further obligations to defendant and told defendant that he needed to either prepare to represent himself at trial the next day...