State v. Harrell, 241 Or. App. 139

Defendant James Harrell was charged with multiple counts of assault, attempted assault, and unlawful use of a weapon and tried before a jury.
During deliberations, Harrell moved to waive jury trial and have the court decide the case; the court denied the motion because it believed it lacked discretion without the state's consent.
The court stated it would grant a waiver if both sides agreed and noted it lacked authority to dismiss the jury at that stage without consent, and it warned the jury could not be treated as grounds for mistrial.
The court issued a provisional verdict to avoid retrial if an appellate court later held Harrell had a right to waive after deliberations.
The jury returned verdicts finding Harrell guilty on two counts of second-degree assault and not guilty on other charges; the court then read a separate provisional acquittal.
Harrell moved for reconsideration and for a new trial, arguing the court did have discretion to grant a late-stage waiver and that denying it conditioned the waiver on the state's consent; the court reiterated its discretionary stance and ultimately denied the motions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court had authority to grant a jury-waiver during deliberations	Harrell argues the court had discretion to grant the waiver regardless of timing or state consent.	State argues the waiver is subject to timing and requires state consent; the court cannot grant it unilaterally at that stage.	No abuse; court possessed discretion and did not err in denying the late-stage waiver.
Whether the court abused its discretion by conditioning the waiver on the state's consent	Harrell contends conditioning on state consent violated Article I, section 11 rights.	State contends consent is a permissible factor among many in a discretionary decision.	Not an abuse; timing and multiple factors supported the court's decision.
Whether post-trial statements affecting the waiver decision can be considered on appeal	Harrell argues post-trial statements should be ignored as new rationalizations.	State argues the court correctly reconsidered and explained its discretion.	Post-trial rationales properly considered to evaluate the court's exercise of discretion.
Whether the court's decision was a proper exercise of discretion and not a de facto veto by the State	Harrell contends state opposition effectively vetoed the waiver.	State asserts the court weighed factors, including timing and propriety.	Court exercised legitimate discretion; no improper veto.

State v. Baker, 328 Or. 355 (Or. 1999) (jury waiver requires writing and trial judge's consent; state cannot veto the waiver)
State ex rel. Maizels v. Juba, 254 Or. 323 (Or. 1969) (discretion describes choice among permissible actions)
State v. Wilson, 240 Or. App. 708 (Or. App. 2011) (abuse of discretion analysis in discretionary denial cases)
Barber, 343 Or. 525 (Or. 2007) (discussion of timing and mechanics of waiver provisions)
Swint, 3 Or. App. 528 (Or. App. 1970) (references to waiver timing but not dispositive)