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State v. Lacey

Supreme Court of Oregon

December 13, 2018

STATE OF OREGON, Petitioner on Review,
v.
RICHARD LARRY LACEY, Respondent on Review.

          Argued and submitted October 19, 2017

          On review from the Court of Appeals. [*] (CC 11R0121, 12CR0202); (CA A156849 (Control), A156850);

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

          Eric Johansen, Deputy Public Defender, Salem, argued the cause and fled the brief for respondent on review. Also on the brief was Ernest G. Lannet, Chief Defender, Offce of Public Defense Services.

          Before Walters, Chief Justice, and Balmer, Kistler, Nakamoto, Flynn, Duncan, and Nelson, Justices. [**]

         [364 Or. 172] Case Summary:

         In the underlying criminal cases, defendant waived his right to counsel and invoked his right to self-representation after being warned that, if he engaged in disruptive conduct during his jury trial, he would be removed from the courtroom, and the trial would proceed without anyone present to represent him. Despite that warning and numerous others during the trial, defendant engaged in disruptive conduct throughout the trial, and, before closing argument, he informed the trial court that he would not abide by its order prohibiting him from referring to information that had not been admitted into evidence. After confirming that defendant intended to violate its order, the trial court removed defendant from the courtroom for the remainder of the trial day, and defendant was convicted. The Court of Appeals held that the trial court had violated defendant's Sixth Amendment right to representation because, once the court had removed defendant from the courtroom, it did not either appoint counsel or secure a renewed waiver of defendant's right to representation. Held: (1) While representing himself, defendant made a knowing and voluntary choice to be removed from the courtroom and leave the defense table empty; and (2) the trial court did not violate defendant's Sixth Amendment rights by accepting that choice.

         The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.

         [364 Or. 173] DUNCAN, J.

         In these criminal cases, which were consolidated for trial, defendant waived his right to counsel and invoked his right to self-representation after being warned that, if he engaged in disruptive conduct during his jury trial, he would be removed from the courtroom, and the trial would proceed without anyone present to represent him. Despite that warning and numerous others during the trial, defendant engaged in disruptive conduct throughout the trial, and, before closing argument, he informed the trial court that he would not abide by its order prohibiting him from referring to information that had not been admitted into evidence. After confirming that defendant intended to violate its order, the trial court removed defendant from the courtroom for the remainder of the trial day.

         The jury found defendant guilty of most of the charged crimes. Defendant appealed, asserting that the trial court had violated his rights under the Sixth Amendment to the United States Constitution by proceeding with the trial in his absence.[1] The Court of Appeals agreed, holding that the trial court had violated defendant's Sixth Amendment "right to representation" because "it did not secure a waiver of defendant's right to representation, it did not appoint counsel, and it did not take other measures to protect defendant's right to representation after it removed him from the courtroom." State v. Lacey, 282 Or.App. 123, 127, 385 P.3d 1151 (2016). On the state's petition, this court allowed review. As explained below, we conclude that, while representing himself, defendant made a knowing and voluntary choice to be removed from the courtroom and leave the defense table empty and the trial court did not violate defendant's Sixth Amendment rights by accepting that choice.

         I. HISTORICAL AND PROCEDURAL FACTS

         The state brought two criminal cases against defendant, alleging multiple counts of unlawful manufacture, [364 Or. 174] delivery, and possession of marijuana, and criminal forfeiture. See former ORS 475.856 (2011) (manufacture); former ORS 475.860 (2011) (delivery); former ORS 475.864 (2011) (possession);[2] ORS 131.582 (criminal forfeiture). The state also alleged two sentencing enhancement facts in connection with the crimes charged in the second case. The cases, which involved a total of 32 counts, were consolidated for trial.

         Before trial, defendant was represented by four different attorneys in succession. He retained the first two, each of whom withdrew at his request. He then requested a court-appointed attorney. The trial court granted that request and appointed defendant's third attorney. That attorney later withdrew after defendant unsuccessfully attempted to fire him. The trial court then appointed a fourth attorney, Scales. At trial call, Scales reported that he would be ready for trial on the scheduled trial date. Defendant disagreed and then disobeyed the trial court's orders to be quiet and allow Scales to speak. The trial court held defendant in contempt for three successive violations of its orders, imposing a greater fine each time.

         At a subsequent trial call held the week before the scheduled trial date, Scales reported that he was ready for trial. After that, defendant filed a motion asking the trial court for a continuance or, in the alternative, to discharge Scales. At that point, the first case had been pending for about three years, and the second case had been pending for about two years.

         The trial court held a hearing on defendant's motion the day before the scheduled trial date. At the hearing, Scales asked to withdraw as defendant's counsel. Scales informed the court that it appeared that defendant, who had been filing motions on his own, wanted to represent himself. Scales also informed the court that defendant was insisting on raising a defense based on an interpretation of the Oregon Medical Marijuana Act that the trial court had rejected at a prior hearing.

         [364 Or. 175] The trial court denied defendant's request for a continuance. It encouraged defendant to continue with Scales as his attorney, explaining that neither Scales nor defendant could raise the defense defendant wanted to raise because, as it had already ruled, the defense was based on an incorrect statutory interpretation. The trial court also advised defendant that, if he proceeded pro se and engaged in disruptive conduct, he would be removed from the courtroom and the trial would proceed without him and without defense counsel:

"THE COURT: Let me tell you another reason why [proceeding pro se] may be a bad idea. One of the things I'm concerned about in this trial is you speaking out of turn or arguing with me after a ruling. And I told you I'm gonna hold you in contempt. And what I'm going to do or what I intend to do to enforce that is to have you removed from the courtroom. If you're not going to behave in court, then you give up the right to be in court. If you have an attorney, your attorney will still be here and can continue to advocate for you, continue to ask questions of witnesses and represent your interests. If you're representing yourself and you're removed from the court, then there's no one sitting at that table *** and we'll just go on without you."

(Emphasis added.) The trial court repeated that warning, telling defendant that if he engaged in misconduct he would be held in jail for the rest of the trial day:

"THE COURT: *** [T]hat's what I'm going to do. I don't want you speaking out of turn. I don't want you arguing. And what I'm going to do is hold you in contempt if you do that and by making the contempt finding, invoke the sanction of having you removed from the courtroom for the rest of the day. You'll go to jail; you'll sit out the rest of the day in jail. At the end of the trial day, you will be released with an order to come back the next day for the next day of trial, and we'll try again. As long as you behave, you can stay here in court.
"[DEFENDANT]: I understand.
"THE COURT: And that's why, that's yet another and very good reason why I think it's a good idea that you keep Mr. Scales as your attorney.
[364 Or. 176] "[DEFENDANT]: Well, we're not gonna do that. So we don't need to talk about it anymore."

(Emphasis added.) The trial court continued to advise defendant of the risks of self-representation and, after it did, defendant chose to proceed pro se and the trial court allowed Scales to withdraw.

         The case was tried over four days, during which defendant repeatedly engaged in misconduct by arguing with the trial court after it ruled and by failing to abide by its rulings. Throughout the trial, the trial court warned defendant that he would be removed from the courtroom if he continued his misconduct and the trial would proceed in his absence. On the ...


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