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State v. Garrett

Court of Appeals of Oregon

October 9, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
DAVID MICHAEL GARRETT, Defendant-Appellant.

          Argued and submitted March 22, 2018

          Jackson County Circuit Court 15CR31135, 15CR13646; Timothy Barnack, Judge.

          Kyle Krohn, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Patrick M. Ebbett, Assistant Attorney General, argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary:

         Defendant appeals judgments convicting him of first-degree theft, ORS 164.055, and supplying contraband, ORS 162.185. Defendant argues that the trial court erred by forcing him to represent himself at trial without a knowing and intentional waiver, thereby violating his statutory and constitutional rights to counsel. The state argues that the record reflects that defendant knowingly waived his right, because he had a sufficient understanding of the inherent risks of self-representation, and that defendant's repeated misconduct following an appropriate warning by the court established that his waiver was intentional.

         Held:

         The trial court did not err. In this case, the record reflects that defendant knowingly and intentionally waived his right to counsel.

          [299 Or.App. 745] DEHOOG, J.

         In these consolidated cases, defendant appeals judgments convicting him of first-degree theft, ORS 164.055, and supplying contraband, ORS 162.185.[1] Defendant assigns error to three rulings of the trial court, contending that the court erred in (1) requiring him to represent himself at trial without a knowing and intentional waiver of counsel, thereby violating his rights under ORS 135.045, [2] Article I, section 11, of the Oregon Constitution, [3] and the Sixth Amendment to the United States Constitution;[4] (2) rejecting his request to waive his right to a jury trial; and (3) instructing the jury that it could reach a nonunanimous verdict. As to the first assignment of error, defendant argues that he did not knowingly waive his right to counsel, because he was neither warned of the inherent risks of self-representation by the trial court nor otherwise aware of those risks, and that any waiver of that right was not intentional, because the trial court did not provide an advanced warning that his conduct could be deemed a waiver of his right to counsel. The state responds that defendant's repeated requests for counsel, his observation of tasks and duties that counsel perform on behalf of defendants, and his evident understanding of the primary weaknesses of his case collectively demonstrate that he understood the risks of self-representation sufficiently to [299 Or.App. 746] be able to knowingly waive counsel. The state further contends that, because the trial court provided defendant with multiple warnings that his conduct towards his attorneys was placing him at risk of losing his right to counsel, his ultimate waiver of that right was intentional. We conclude that the record reflects that defendant understood the material risks of self-representation associated with his case and that the trial court provided adequate advance warning that his conduct could result in a loss of the right to counsel. Therefore, writing only to address the first assignment of error, we affirm.[5]

         "If a trial court grants a motion to withdraw and does not appoint substitute counsel, thus requiring the criminal defendant to proceed pro se, we review for error of law whether the defendant has knowingly and intentionally waived his or her right to counsel." State v. Langley, 351 Or. 652, 666, 273 P.3d 901 (2012). In addressing that legal question, however, we review the validity of the waiver of counsel "in light of the circumstances of [a defendant's] particular case." State v. Borba, 290 Or.App. 787, 795, 417 P.3d 430 (2018) (internal quotation marks omitted). In this case, a full understanding of the relevant circumstances requires us to review in some detail the procedural history leading up to the denial of defendant's ultimate request for appointed counsel.

         The relevant facts are largely undisputed, with one exception that we note below. Defendant was charged with first-degree theft for stealing a chainsaw from a neighborhood store and selling it to a nearby pawn shop. When a detective investigating the theft spoke to defendant about it, defendant immediately volunteered that he had stolen the chainsaw from the store and sold it to the pawn shop. Defendant was later arrested and taken to jail, where he remained pending trial. At defendant's request, the trial court appointed counsel to represent him. However, at a hearing held on August 25, 2015, defendant sought in [299 Or.App. 747] open court to fire the attorney appointed to represent him, Collins, which led to the following exchange:

"[DEFENDANT]: I want a new attorney and if I see this bitch and she come back tomorrow, I'm gonna end up sockin' her.
"COURT: Alright. [Defendant]? I'm deeply offended by what you just said. I would consider that a direct threat toward Ms. Collins. I want you to know you're gonna get one attorney and that's it * * *."

         The trial court released Collins and subsequently appointed a new attorney, Scales, to represent defendant. At a hearing held on September 11, 2015, however, the court also released Scales from the case. The parties dispute whether the court's decision to release Scales was due, at least in part, to threats defendant had made against him. During the September 11 hearing, Scales informed the trial court that defendant had expressed a desire for a new attorney. Scales also reported that, before he and defendant first met, Scales had been told by jail staff that defendant was prepared to "beat [his] ass." Scales then met with defendant through a glass partition, during which time defendant cursed at Scales and refused to cooperate with him. At the hearing, the trial court permitted defendant to tell his side of the story, and defendant claimed that Scales was the one who had initiated the profanity and that defendant had never threatened to punch him.

"COURT: Did you tell somebody you were going to punch somebody? If you lie to me, you're going to be held in contempt.
"[DEFENDANT]: No, I didn't!
"COURT: Okay. If I find out otherwise, you're gonna be held in contempt of court and you're gonna be doing a lot more time * * *.
"COURT: If that's your final answer, then I'm going to accept it. But if I find out otherwise, I'm holding you in contempt of court."

         [299 Or.App. 748] Although the trial court purported to accept defendant's version of what had happened with Scales, the court also made it clear to defendant that, in its view, he was causing the conflicts with his attorneys and that it believed "Mr. Scales when he tells [the court] that *** these problems were made." Scales clarified for the court that he had only heard potential threats from jail deputies and that defendant had not made any threats to him when they met in person. Nonetheless, the trial court released Scales without specifically explaining its decision to do so. However, the court did tell defendant that "we're not going to continue putting people in front of you just so you can get upset and want to fight." Accordingly, the trial court refused to appoint another attorney for defendant and told him that he would have to hire his own attorney or represent himself at subsequent hearings. Consistent with that ruling, defendant indicated at a hearing held before a different judge on September 21, 2015, that he was representing himself, and the ...


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