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State v. Ames

Court of Appeals of Oregon

June 19, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
KYLE ALAN AMES, Defendant-Appellant.

          Argued and Submitted December 19, 2018

          Coos County Circuit Court 16CR34310; Richard L. Barron, Judge.

          Mark J. Kimbell, Deputy Public Defender, argued the cause for appellant. On the opening brief were Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Laura E. Coffin, Deputy Public Defender, Offce of Public Defense Services. Also on the supplemental brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section.

          Susan G. Howe, Assistant Attorney General, argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary:

         Defendant appeals from a judgment of conviction for second-degree burglary, first-degree theft, and second-degree criminal mischief. Defendant assigns error to the trial court's denial of his request to waive a jury trial, which defendant raised on the morning of trial before the jury was empaneled. Defendant argues that the trial court abused its discretion by misapplying the relevant factors that a trial court is to consider when deciding whether to consent to a jury trial waiver under Article I, section 11, of the Oregon Constitution. In response, the state first argues that defendant failed to preserve the error for appellate review because defendant did not object or make any further legal argument after the trial court denied his request to waive the jury. In any event, the state argues, the trial court's denial of defendant's request to waive a jury trial was a proper exercise of the trial court's discretion. Held: First, the error was sufficiently preserved for appellate review. The policy considerations that [298 Or.App. 228] underlie the preservation requirement were met, and, once the trial court ruled, defendant was not obligated to renew his contentions in order to preserve them for the purposes of appeal. Second, the trial court abused its discretion in denying defendant's requested waiver. The paramount consideration should have been whether a bench trial would fully protect defendant's rights. The trial court failed to adequately consider that issue and whether defendant was knowingly and voluntarily exercising his right under Article I, section 11, to waive a jury trial.

         Reversed and remanded.

         [298 Or.App. 229]SHORR, J.

         Defendant appeals from a judgment of conviction for three counts of second-degree burglary, two counts of first-degree theft, and one count of second-degree criminal mischief, assigning error to the trial court's denial of his request to waive a jury trial.[1] For the reasons explained below, we reverse and remand.

         The underlying facts are undisputed. Defendant was arrested and arraigned on charges of burglary, theft, and criminal mischief. Defendant was then conditionally released from custody. After he failed to appear at a subsequent hearing in this case, defendant was arrested on new charges. Defendant then personally appeared before the trial court in this case on March 17, 2017. During a plea hearing that occurred a few days later, defendant requested a jury trial. Trial was scheduled for May 2, 2017, with a trial readiness hearing scheduled for the preceding day. When defendant failed to appear at the trial readiness hearing on May 1, the court cancelled the jury trial. Later in the day on May 1, defendant was arrested on different charges, and the jury trial was reinstated for the following day.

         On the scheduled day of trial, May 2, during discussion of pretrial matters with the court and before the jury was empaneled, defendant's counsel requested to waive defendant's right to a jury and asked that the case be tried to the court. Defendant was in custody and not present in the courtroom for that discussion. The prosecutor expressly took no position on defendant's request to waive a jury trial. The trial court denied defendant's request, explaining that it was doing so for three reasons. First, the trial court expressed concern about the "timing" of the request, coming on the morning of trial. Second, the court expressed an economic concern for the court having already incurred the cost for the jurors, stating that it would be "no more [298 Or.App. 230] economical" to cancel the jury at such a late hour. Third, the court expressed a belief that the jury would be able to fully protect defendant's rights, noting that, unlike the court, the jury was not aware of defendant's custody status and his prior criminal record. To these points, the trial court stated as follows:

"I'm aware of the cases that have come out the last couple years. And it is a discretionary call by the Court.
"I'm not going to allow the waiver of the jury trial. He apparently was here for the change of plea [hearing], he requested a jury trial. We've got jurors who are here, waiting. In fact, I brought in quite a number of jurors here in this case.
"The timing is a concern on my part-the waiver on the-on the morning when I have the jury already here. If I would have known about it last night, I could have at least called the jury off.
"The other thing that I factor in is this. I actually have done a little work on this case in terms of looking at the proceeding sheet, looking at the charging instrument. I know that he's in custody. I mean, I know all those things that a jury wouldn't know. A jury is not going to know that he's in custody.
"I know a little bit about his background. I guess I'm hearing now that he's got warrants outstanding, or-
"* * * all of this is just a concern that I, as a neutral factfinder, I'm not so sure I-you know, I've got that ...

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