State v. Nees

319 Or.App. 725

511 P.3d 67

STATE of Oregon, Plaintiff-Respondent,

v.Tyler W. NEES, aka Tyler Nees, aka Tyler Wayne Nees, Defendant-Appellant.

A173885

Court of Appeals of Oregon.

Argued and submitted October 5, 2021.

May 25, 2022

George W. Kelly, Eugene, argued the cause and filed the briefs for appellant.

Jordan R. Silk, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Egan, Presiding Judge, and Pagán, Judge, and DeVore, Senior Judge.^*

EGAN, P. J.

Defendant appeals a judgment of conviction for murder constituting domestic violence, ORS 163.115. He raises three assignments of error as well as pro se supplemental assignments of error. We write to address only his second assignment of error and reject the other assignments without discussion. Defendant assigns error to the trial court's decision to require him to proceed to trial without counsel in violation of Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution.¹ We conclude that the record is sufficient to support a finding that defendant made a knowing and intentional waiver of his right to counsel. Accordingly, we affirm.

The pertinent facts are undisputed and mostly procedural. Defendant stabbed his father, who named defendant as his assailant in a deathbed identification. Defendant was arrested and, shortly thereafter, indicted. Over the next two years, while defendant's case was pending, the trial court appointed seven attorneys to represent defendant. For various reasons, the court allowed three sets of two attorneys, and one additional and final attorney, to withdraw from representation of defendant.

Defendant complained that his first set of attorneys were not providing him with access to case law or discovery and were not contacting witnesses who could attest to his character. After defendant insisted that he either be allowed a substitution of counsel, or to proceed pro se , the court allowed those attorneys to withdraw.

The trial court then appointed defendant his third and fourth attorneys. Several months later, defendant again requested a hearing for the purpose of asking the court to substitute counsel, at which he complained:

"[T]he representation you guys are giving me is hindering my defense. *** They're not allowing me to see my discovery, which I have a right to a discovery, and I have a right to get witnesses in my defense, and they're not doing that. *** Are they going to actually get me my discovery? I'm charged with a serious crime, charged, and I'm innocent until proven guilty."

Defendant stated that he was firing his attorneys and demanded new counsel; however, those attorneys continued to represent him at that time. At a hearing one month later, defendant again complained that his attorneys were not following up with his witnesses and were taking too long acquiring discovery. Thereafter, defendant's relationship with his third and fourth attorneys continued to deteriorate. For instance, two months later, defendant spat on one of his attorneys in the court room. Two weeks after that, defendant's attorneys requested permission to withdraw, citing a breakdown in the professional relationship. The court granted their request and then appointed two more attorneys—defendant's fifth and sixth.

Defendant's relationship with those attorneys was fraught as well. On one occasion, a sheriff's deputy over-heard defendant say, "If [his attorney] trucks me off during the trial, I'm going to grab her by her hair, drag her around the room, and beat her senseless."

At a subsequent confidential hearing, defendant again voiced his frustrations with counsel:

"Well, [the attorneys] came on my case about nine months ago. And I've had problems with my two prior attorneys. And due to those problems, they had a conflict with me. They didn't want to see me; they didn't want to talk to me. They didn't want to come in and really go over my discovery. ***

"So I can't ask about anything. I've never been able to go over any of the motions prior to being filed. And there's problems with the motions that have been filed."

Defendant reiterated that his attorneys had not contacted witnesses, had not followed up on his requests for discovery, and were not filing the motions that he wished to file. Defendant's attorneys responded:

"[DEFENDANT'S FIFTH ATTORNEY]: [W]ithout getting into any specifics, in the discussions in the jury room things got particularly heated, which resulted in me not wanting to be next to [defendant] at all throughout any court proceeding for the rest of—the duration of the case[.]

"And also, his actions caused me to believe that the breakdown in communications are pretty deteriorated in terms of I wouldn't have much confidence in his having any confidence in us ***. *** [B]ased on his actions, I think that trust is gone. And I certainly—I think perhaps he might be prejudiced by having Defense counsel who doesn't want to sit next to him throughout the duration of the trial.

"[DEFENDANT'S SIXTH ATTORNEY]: And just to add on to that ***. And I discovered some things later—or earlier today that also makes me feel that I am uncomfortable sitting next to [defendant] during any court proceedings. And I, too, believe that would be prejudicial to [defendant] during trial ***."

The court agreed to appoint a new attorney, but warned defendant, "[Y]ou're not going to get a new attorney next time if you engage in behavior that contributes to the breakdown of your attorney-client relationship. Okay?" The court reiterated:

"[I]f you engage in behavior that contributes to the breakdown of [the] attorney-client relationship, I'm not required to appoint new counsel[.]

"And if I find that your counsel in the future are performing adequately, meeting their constitutional obligations, then you're not entitled to get a new attorney. You're not entitled to get a new attorney because you're refusing to communicate with someone, because you filed a Bar complaint, or [for] similar reasons."

The court and defendant then engaged in the following colloquy:

"THE DEFENDANT: [Y]ou're going to tell me that I'm going to be forced to go pro se ?

"THE COURT: I'm giving you the attorneys who I believe will be competent, they'll be certified. They'll be able to represent you and perform competently. They are certified under the rules of the State of Oregon to be able to do so in this kind of case, which is a *** complicated case.

"And—but you're not entitled to any attorney of your choosing, and you're not entitled to create problems with your attorney. So, there are risks and disadvantages if you were *** to represent yourself right now, and I'm not necessarily going to require you to represent yourself in the future.

"There are risks and disadvantages, though, if you are—do represent yourself, and those are that you lack legal training and experience and may not realize defenses that are available to you. There—you, as a lawyer, don't understand the rules and procedures of a trial that will apply to you, even though you're not a lawyer. And the State is represented by an attorney and has an advantage over you.

"There are benefits that you give up when you represent yourself at trial, rather than having an attorney. An attorney can help review the facts of your case to determine what defenses you have and identify problems with the State's case against you.

"An attorney can help you in your case by helping you determine whether you want to enter a plea bargain or not, help you negotiate a plea instrument—plea agreement.

"An attorney knows how to gather evidence, file pretrial motions, call witnesses[,] cross-examine State's witnesses, [and] also conduct direct examination.

"We've talked about the Rules of Evidence. You were following your attorney's argument with the Judge today regarding admission of evidence statements. An attorney understands the Rules of Evidence and knows how to question witnesses and present evidence ***.

"An attorney knows when and how to object to the use of improper evidence, which is what [your attorney] was describing earlier today. Can help you decide if you should have a jury trial or a Judge trial and can help you evaluate and challenge potential jurors.

"An attorney knows how to make legal arguments to the Court and present opening and closing statements to the jury.

"An attorney can tell you what sentence may be imposed if you're found guilty and can help you present evidence and make arguments about sentencing issues.

"An attorney knows how to get information from the Prosecutor that is important to your case, such as police reports and statements from witnesses.

"And the Judge, the District Attorney, and the Court staff cannot give you any legal advice or help you defend yourself at trial.

"So, those are the risks and disadvantages that you have if you are to represent yourself at trial. ***

"So, did you hear me go through these risks?

"THE DEFENDANT: Yes, I did.

"THE COURT: And did you understand them all?

"THE DEFENDANT: Sure.

"THE COURT: So if, in the future, if you come back requesting new counsel[.]

"THE DEFENDANT: I haven't requested new counsel.

"THE COURT: I know. If you do, the Court is not likely to grant a motion for a new attorney in the future on the grounds that there [is] a breakdown in the attorney-client relationship if it is based on you disagreeing with actions that your attorney is taking that I found are actions reasonable to take.

"If you are disagreeing with actions your attorneys are not taking, that I find are actions that are reasonable not to take.

"Based on your refusing to communicate with counsel, based on explicitly or implicitly threatening counsel, or for any other similar reasons that are related to your contributions to the breakdown of attorney-client relationship.

"If that is the situation, when you come back asking for a new counsel, then future conduct of that sort will be

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