401 P.3d 1188
Or. Ct. App.2017Background
- Defendant faced three consolidated indictments: two "Measure 11 and prostitution" cases (12-06-32917; 12-07-33213) and one tampering case (12-08-33617). Trials were severed; tampering tried first.
- Multiple court-appointed attorneys repeatedly withdrew citing conflicts and threats by defendant; defendant also sought self-representation and at times requested new counsel or continuances to obtain counsel.
- The trial court, after sealed hearings and prior warnings to defendant that continued abusive conduct would lead to self-representation, concluded defendant had waived his right to counsel by conduct and required him to proceed pro se in the Measure 11 and prostitution trials; defendant was later denied appointment of new counsel for the enhancement/sentencing phase.
- Defendant was convicted in the Measure 11 and prostitution cases on multiple counts (promoting and compelling prostitution, assaults, robbery, tampering) and in the tampering case (tampering with witness, tampering with physical evidence).
- On appeal, defendant challenged (1) the court’s finding that he waived counsel under Article I, §11 (Oregon) and the Sixth Amendment, and (2) the trial court’s denial of his demurrer to the indictment in case 12-06-32917 for failure to plead the statutory basis for joinder (ORS 132.560).
- The appellate court affirmed that defendant knowingly and intentionally waived counsel and that the trial court did not abuse its discretion in denying appointment of counsel for the enhancement phase; but it reversed as to the demurrer, holding the indictment failed to allege the joinder basis and that error was not harmless.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant validly waived counsel under Article I, §11 (Oregon) by conduct | State: prior warnings, defendant’s criminal experience, threats to counsel, and sealed evidence show defendant knowingly and intentionally waived counsel | Defendant: trial court misapplied waiver-by-conduct standard and failed to warn he risked losing appointed counsel if misconduct continued; no valid waiver | Held: Waiver valid — defendant knew risks and intentionally waived by conduct after prior warning and sealed evidence of threats |
| Whether waiver comported with Sixth Amendment | State: totality of circumstances and warnings show voluntary, knowing, intelligent waiver | Defendant: Meeks requires explicit advising that misconduct could lead to loss of counsel and danger of proceeding pro se | Held: Sixth Amendment waiver valid — prior warnings plus defendant’s background satisfied Faretta/Johnson standards |
| Whether trial court abused discretion by denying appointment of new counsel for enhancement/sentencing | State: defendant’s last-minute requests were dilatory; jury had been waiting; appointment would disrupt proceedings | Defendant: appointment would not necessarily disrupt scheduled proceedings and was required for fairness | Held: No abuse — court properly balanced defendant’s right against public and juror interests and denied last-minute appointment/continuance |
| Whether indictment in 12-06-32917 failed to plead statutory basis for joinder under ORS 132.560 (demurrer) and if error was harmless | State: any joinder defect harmless because factual links would have allowed admission of evidence in separate trials | Defendant: indictment did not allege joinder basis; improper joinder prejudiced him because evidence admitted would not be admissible in separate trials | Held: Trial court erred in denying demurrer; indictment did not comply with Poston rule and the joinder error was not harmless — reverse and remand for judgment allowing demurrer |
Key Cases Cited
- State v. Meyrick, 313 Or. 125 (Oregon 1992) (defines knowledge requirement for Article I, §11 waiver and importance of colloquy about risks of self-representation)
- State v. Langley, 351 Or. 652 (Oregon 2012) (sets three-part test for waiver by conduct: repeated misconduct defeating counsel, prior warning, opportunity to present position privately)
- State v. Hightower, 361 Or. 412 (Oregon 2017) (addresses limits on restoring right to counsel after invocation of self-representation and discretion at trial)
- Faretta v. California, 422 U.S. 806 (U.S. 1975) (Sixth Amendment right to self-representation requires waiver to be knowing and intelligent)
- Edwards v. Arizona, 451 U.S. 477 (U.S. 1981) (waiver analysis depends on facts and circumstances, including background and experience of accused)
- United States v. Meeks, 987 F.2d 575 (9th Cir. 1993) (discusses requirement to inform defendant of dangers of proceeding pro se when denying substitution and compelling self-representation)
- United States v. Sutcliffe, 505 F.3d 944 (9th Cir. 2007) (upholds waiver by conduct where court relied on prior warnings and defendant’s continued abusive behavior)
- State v. Poston, 277 Or. App. 137 (Or. Ct. App. 2016) (requires charging instrument to allege basis for joinder under ORS 132.560; used to evaluate harmlessness of joinder error)