State v. Berry

• Decision Date: 20 April 1988
• Citation: 753 P.2d 433,90 Or.App. 579
• Parties: STATE of Oregon, Respondent, v. Lee Michael BERRY, Appellant. 85-03810; CA A42138.
• Court: Oregon Court of Appeals

Page 433

753 P.2d 433

90 Or.App. 579

STATE of Oregon, Respondent, v. Lee Michael BERRY, Appellant.

85-03810; CA A42138.

Court of Appeals of Oregon.

Submitted on Record and Briefs

July 27, 1987.

Decided April 20, 1988.

Reconsideration Denied June 10, 1988.

Review Denied June 28, 1988.

Timothy M. Dolan, Garibaldi, filed the brief for appellant.

Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and Philip Schradle, Asst. Atty. Gen., Salem, filed the brief for respondent.

Before RICHARDSON, P.J., and NEWMAN and DEITS, JJ.

DEITS, Judge.

Defendant, an enrolled member of the Confederated Tribes of the Siletz Indians, was convicted by a jury for illegal possession of gillnetted salmon. ORS 509.011. On appeal, he argues that the state failed to establish jurisdiction and that the trial court violated his right to proceed pro se by appointing an attorney advisor to assist him. We affirm.

Defendant contends that the state has no authority to enforce a state fishing regulation against him, because it was not shown that the enforcement of the regulation was reasonable and necessary for conservation purposes. We disagree. The state was not required to prove a conservation necessity to regulate in this case. In contrast to the cases relied upon by defendant, ¹ his fishing rights were not derived from a treaty, but rather from an agreement between the State of Oregon, the United States of America and the Confederated Tribes of the Siletz Indians of Oregon. The agreement permanently defines the tribal hunting, fishing and gathering rights of the Siletz tribes and its members and was made fully effective by a final judgment entered by the United States District Court for the District of Oregon in The Confederated Tribes of Siletz Indians of Oregon v. State of Oregon, No. 80-433 (D Or May 2, 1980). ²

The Siletz agreement states, in pertinent part:

"Prohibited Acts. The following acts shall not be included within the tribe's special fishing rights and are subject to regulation under applicable state or federal law:

" * * *

"(2) Net fishing, including gill netting, * * *." (Emphasis supplied.)

There are no lawful seasons on the Siletz River to fish with a gillnet. See OAR 635-41-510; OAR 635-41-515. Because the agreement clearly provides authority for the state to regulate gillnetting, there is no requirement that the state prove a conservation necessity. Defendant's possession of gillnetted salmon was clearly in violation of state law, and the state had the authority to enforce the regulation against defendant. ³ See ORS 509.011.

Defendant next argues that his constitutional right to represent himself was violated when the court appointed an attorney advisor to assist him during the course of the trial. Defendant contends that the advisor pressed him to make several objections during the course of the trial, which interfered with his defense strategy, which was to remain mute in silent protest of the proceeding. In State v. Verna, 9 Or.App. 620, 624, 498 P.2d 793 (1972), we held that "[a] defendant in a criminal case has the constitutional right not only to be represented by counsel, but also, if he so elects, to represent himself." Or. Const. Art. 1, § 11. At the outset of the trial, defendant requested that his court-appointed attorney be removed and that another attorney be appointed to represent him. The trial court denied the motion, ⁴ and defendant requested that he be allowed to represent himself. The court allowed defendant to proceed pro se but, because of defendant's statements that he was not versed in legal jargon and that he did not know how to cross-examine witnesses or conduct voir dire, the court appointed the attorney to serve as an advisor. ⁵ The court explained that defendant was free to consult with the attorney advisor, but was not required to do so. Defendant objected.

The appointment of the advisor was within the trial court's authority. State v. LeMay, 27 Or.App. 447, 449-450 n 1, 556 P.2d 688 (1976). Our review of the record indicates that, although the advisor suggested that defendant make several objections, he made the objections himself and offered no protest regarding the objections until the following day. Defendant's right to represent himself was not violated.

Affirmed.

1 State v. Settler, 81 Or.App. 518, 726 P.2d 410 (1986), rev. den. 302 Or. 461, 730 P.2d 1252 (1986), cert. den. 481 U.S. 1069, 107 S.Ct. 2461, 95 L.Ed.2d 870 (1987); State v. Jim (Bruce), 81 Or.App. 189, 725 P.2d 372 (1986); State v. Jim (Warner), 81...