State v. Hightower

361 Or. 412

393 P.3d 224

STATE of Oregon, Respondent on Review,

v.Gregory Leon HIGHTOWER, aka Gregory Leon Hightower, Sr., Petitioner on Review.

CC 120632737

CA A154220

SC S063924

Supreme Court of Oregon.

Argued and submitted September 23, 2016.

April 27, 2017

Ernest G. Lannet, Chief Defender, Salem, argued the cause and filed the briefs for petitioner on review.

Erin K. Galli, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review.

Before Balmer, Chief Justice, and Kistler, Walters, Landau, Brewer, and Nakamoto, Justices.^**

LANDAU, J.

The issue in this case is the scope of a criminal defendant's right to self-representation when that right is invoked in the middle of trial. We hold that, although Article I, section 11, of the Oregon Constitution establishes a criminal defendant's right to represent himself or herself in a criminal proceeding, the right is not unqualified. In particular, when the right is asserted well after trial commences, the trial court retains discretion to weigh its exercise against the constitutional obligation to preserve the integrity and fairness of the proceeding, as well as the court's interest in ensuring an orderly and expeditious trial. If a trial court exercises that discretion to deny a defendant's motion for self-representation, it should make a record that reflects how it exercised that discretion.

In this case, the trial court concluded that defendant had no right to seek self-representation mid-trial. The Court of Appeals affirmed on the ground that the trial court's decision reflected an "apparent" concern about potential disruption of the trial and, because of that concern, did not amount to an abuse of discretion. State v. Hightower , 275 Or.App. 287, 293, 364 P.3d 29 (2015). We conclude that the trial court erred as a matter of law in concluding that a defendant may not assert the right to self-representation once trial has commenced. Accordingly, we reverse the decisions of the trial court and Court of Appeals and remand to the trial court for further proceedings.

The relevant facts are not in dispute. Defendant was charged with a number of sex offenses, based on evidence that he sexually abused a 16-year-old girl and forced her and her 18-year-old step-sister into prostitution. Defendant asked for court-appointed counsel, and the court granted the request.

Defendant was less than enthusiastic about his court-appointed counsel. He asked the court to replace the lawyer several times, but, each time, the court declined, explaining that defendant's various complaints about his lawyer amounted to disagreements about trial strategy.

During the first three days of the trial itself, during the state's case-in-chief, defendant repeatedly complained about defense counsel's actions, questioning his performance, instructing him to ask further questions, and attempting to object to witness testimony. The trial court responded by telling defendant to be quiet and twice warning that it would send defendant out of the courtroom if he did not stop objecting.

On the fourth day of trial, defendant stated that he wished to represent himself so that he could present evidence that counsel had refused to offer. The trial court did not rule on his request to represent himself, responding, "It's the lawyer's job to decide what evidence is presented. So it's [defense counsel's] call. * * * He gets to decide." Later that day, defendant again moved to represent himself; the trial court again denied defendant's motion, saying, "All right. Here's the thing, * * * you don't change horses in the midstream. And even though you have a right in some sense under some circumstances to defend yourself, in the middle of a trial I'm not going there." When defense counsel argued that "one of his rights is if he wants to represent himself, he gets that right," the trial court responded, "Well, actually not." The court told defendant, "I understand you're asking at this point to get rid of [defense counsel] and take over the defense of the case on your own. I'm denying you that right to do that."

Later, defendant renewed his motion to represent himself. Defense counsel asked the court to "make a clearer ruling" and the court again denied the motion. When defense counsel pressed the court for a reason, the court responded,

"Well, I'm not going to take you off the case. I'm not going to right in the middle of the trial and change where we are. Certainly people have a right to represent themselves, but it doesn't start in the middle of the trial, or indeed at the beginning of the defense case."

Defense counsel again argued that "in the absence of a finding that removing me would be disruptive, I think the court has an absolute obligation to do so." The court again denied the motion, saying, "[W]e'll have to disagree on that, then.

I'm confident that despite [defendant's] desires, he's not actually in a position to represent himself, so I'm going to deny that motion."

The state rested, and defense counsel moved for judgment of acquittal, at which point defendant again interjected with his own reasoning. Counsel again asked the court to allow defendant to represent himself. Counsel argued that defendant "would be best served if you allowed him to represent himself, and the disruptions to the Court would be significantly diminished if not completely eliminated." Again, the court denied the motion, saying "Well, I'm not going to."

Defendant was ultimately convicted on seven counts and sentenced on each count to life in prison without the possibility of parole pursuant to ORS 137.719.

Defendant appealed, arguing that the trial court erred in denying his motions for self-representation. At the least, defendant argued, the court erred in denying his requests in the absence of findings that, for instance, allowing him to represent himself would be disruptive. The Court of Appeals affirmed. The court explained that the Article I, section 11, right to self-representation is not unqualified. Hightower , 275 Or.App. at 292, 364 P.3d 29. Among other things, the Court of Appeals said, a trial court may decline to grant a motion for self-representation if it determines that the decision to waive the right to counsel is not "intelligent and understanding" or if it would result in "disruption of the orderly conduct of the trial." Id. In this case, the Court of Appeals noted that, although the trial court had categorically rejected the notion that a defendant could "change horses in the midstream," the court also had previously threatened to remove defendant for his disruptive behavior. Id. at 293, 364 P.3d 29. "Thus, it is apparent," the Court of Appeals commented, "that the court's overriding concern was that granting defendant's self-representation request in the middle of trial would have disrupted the orderly conduct of the proceedings." Id. As a result, it concluded that the trial court did not abuse its discretion in denying defendant's motion. Id. at 294, 364 P.3d 29.

On review, defendant argues to this court that the Court of Appeals erred. Defendant acknowledges that, at least once trial has begun, the right to self-representation is "not absolute." He nevertheless contends that, as a matter of law, a trial court is required to grant a request for self-representation unless defendant has engaged in "[d]eliberate and serious" interference with counsel's representation or "serious misconduct that thwarts the progression of trial." At the least, defendant argues, the trial court cannot deny a motion for self-representation without making findings that enable a reviewing court to determine whether there was an appropriate exercise of discretion.

For its part, the state contends that a criminal defendant must choose whether to be represented by counsel or to self-represent. By choosing one, the state asserts, the defendant necessarily relinquishes the other. Moreover, the state argues that a criminal defendant must make that choice before trial begins. In the state's view, Article I, section 11's purpose of "allowing the defendant a choice of how to present his defense at trial * * * can be fully vindicated only if it is exercised before trial." At best, the state argues, if the right of self-representation is not asserted until after trial has begun, a trial court's decision to deny the right is reviewed for an abuse of discretion. In this case, the state concludes, given defendant's prior disruptive behavior, the trial court did not abuse its discretion in denying his motion to represent himself.

Article I, section 11, enumerates a number of rights that attach "[i]n all criminal prosecutions." Among those rights is that the accused is entitled "to be heard by himself and counsel." This court has long held that the right "to be heard by" oneself includes the right to self-representation at trial. As explained in State v. Butchek , 121 Or. 141, 153, 253 P. 367 (1927), "[t]he Constitution guarantees to a defendant the right to be heard by himself and counsel, but it does not force counsel upon him." See also Johnson v. Premo , 355 Or. 866, 872, 333 P.3d 288 (2014) ("[A]n individual litigant generally has the right to represent himself or herself in court.").

The right to self-representation is the counterpart to the right to be represented by counsel at trial. See State v. Rogers , 330 Or. 282, 297, 4 P.3d 1261 (2000) ("The Oregon Constitution establishes that right in conjunction with the right to be heard by counsel."). That is to say, the two rights are mutually exclusive. See State ex rel Ott v. Cushing , 289 Or. 705, 709, 617 P.2d 610 (1980) ("[T]he right of a defendant to the assistance of counsel carries with it the correlative right to dispense with such assistance."). The accused in a criminal trial has a choice either to be represented by counsel or to represent himself or herself. Article I, section 11, does not grant a right to so-called "hybrid representation." State v. Stevens , 311 Or....