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State v. Nyquist

Court of Appeals of Oregon

August 22, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
DAVID ARTHUR NYQUIST, Defendant-Appellant.

          Argued and submitted May 31, 2018

          Linn County Circuit Court 16CR27396; David E. Delsman, Judge.

          Emily P. Seltzer, Deputy Public Defender, argued the cause for appellant. Also on the brief were Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Lauren P. Robertson, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F . Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Armstrong, Presiding Judge, and Shorr, Judge, and Bunch, Judge pro tempore.

         Case Summary:

         In this criminal case, defendant appeals a judgment convicting him of five crimes, contending that the trial court abused its discretion when it denied his mid-trial request to represent himself. Held: Defendant unequivocally requested to represent himself and did not abandon that request. The court abused its discretion in denying defendant's request because it failed to make a record of how it weighed defendant's right to represent himself against other interests that come into play at the commencement of trial.

          [293 Or.App. 503] BUNCH, J. pro tempore.

         In this criminal case, defendant appeals a judgment convicting him of five crimes, contending that the trial court abused its discretion when it denied his mid-trial request to represent himself. As explained below, we agree and, accordingly, reverse and remand for a new trial.

         Before setting out the facts, we summarize the relevant law. Under Article I, section 11, of the Oregon Constitution, a defendant has both the right to be represented by counsel and the right to self-representation. State v. Hightower, 361 Or. 412, 416-17, 393 P.3d 224 (2017). Those two rights are mutually exclusive; that is, "by asserting the right to counsel, a defendant waives the right to self-representation" and "by waiving the right to counsel, a defendant necessarily asserts the right to self-representation." Id. at 417. For that reason, the Supreme Court has required that a defendant's waiver of the right to counsel "be preceded by a warning concerning the 'dangers and disadvantages of self-representation.'" Id. (quoting State v. Meyrick, 313 Or. 125, 133, 831 P.2d 666 (1992)).

         Although a defendant who has invoked the right to counsel may waive that right and choose self-representation instead, "the right to waive is not absolute and unqualified." Id. "[O]nce a trial has begun, a number of interests other than the defendant's Article I, section 11, rights come into play," including "the trial court's overriding obligation to ensure the fairness and integrity of the trial and its inherent authority to conduct proceedings in an orderly and expeditious manner." Id. at 417-18.

         Consequently, a trial court's ruling on a defendant's mid-trial request to proceed pro se "is subject to appellate review for an abuse of discretion, in light of all other relevant interests that come into play at the commencement of trial." Id. at 418. When the trial court's decision is predicated on a subsidiary conclusion of law—for example, a legal conclusion about the scope of the right—we review that determination for legal error. Id. at 421. As examples of the appropriate exercise of the court's discretion, the Supreme Court has explained that "a trial court may exercise its discretion to deny a motion for self-representation that is [293 Or.App. 504] conditioned on the grant of a continuance," and a court may "deny the motion if it has reason to conclude that granting the motion would result in disruption of proceedings." Id. at 418. However, "the record must include some indication of how the trial court actually weighed the relevant competing interests involved for an appellate court to be able to determine whether the trial court abused its discretion" in ruling on the request. Id. at 421.

         We turn to the relevant facts, which are procedural. Defendant was tried to the court; one of the charges was second-degree assault constituting domestic violence, ORS 163.175; ORS 132.586. At trial, the state's first witness was defendant's former girlfriend, the named victim on the assault charge. Shortly after defense counsel began cross-examining the witness, defendant addressed his counsel and the court:

"THE DEFENDANT: You're fired. I'm going to do it myself. I've got to do it myself. I got to do the questions myself, Your Honor. He's not asking the right questions. I don't mean to be disrespectful to the Court, but I need—I need to—I need to fight my case myself from this point on. Let me ask the questions because I was there. I ...

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