State v. Harrell, CR060548; A138184.

• Decision Date: 23 February 2011
• Docket Number: CR060548; A138184.
• Parties: STATE of Oregon, Plaintiff–Respondent,v.James Anthony HARRELL, Defendant–Appellant.
• Court: Oregon Court of Appeals

241 Or.App. 139

250 P.3d 1

STATE of Oregon, Plaintiff–Respondent,

v.James Anthony HARRELL, Defendant–Appellant.

CR060548; A138184.

Court of Appeals of Oregon.

Argued and Submitted May 28, 2010.Decided Feb. 23, 2011.

Anne Fujita Munsey, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.Anna M. Joyce, Assistant Attorney General, argued the cause for respondent. On the brief were John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Jennifer S. Lloyd, Attorney–in–Charge, Criminal Appeals.Before ORTEGA, Presiding Judge, and SERCOMBE, Judge, and LANDAU, Judge Pro Tempore.SERCOMBE, J.

Defendant appeals a judgment of conviction for two counts of second-degree assault, assigning error to the trial court's denial of his right to waive a jury trial under Article I, section 11, of the Oregon Constitution.¹ Because the trial court did not abuse its discretion in denying defendant's request to waive jury trial, we affirm.

Defendant was charged with multiple counts of assault, attempted assault, and unlawful use of a weapon, and his case was tried to a jury. After the jury had been deliberating for several hours, defendant proffered a written waiver of his right to a jury trial and sought to have the trial court act as factfinder. Defendant explained that his request was prompted primarily by a question that the jury had submitted to the court: “Can (Is it allowed that a person[']s) demeanor from ‘self defense’ to ‘intent to cause injury’ be done instantaneously[?]” The trial court responded that it did not understand the question, and allowed the jury to clarify or rephrase it. From the record, it appears that the jury never clarified and resubmitted its question to the court. Defendant opined that the question demonstrated that the jury was “hopelessly confused.” The state objected to the waiver.

The court denied the waiver on the ground that it did not have discretion at that point in the proceeding to allow the waiver, absent agreement by the state:

“But I think—what was brought to my attention by [defense counsel] is her client's desire to waive a jury or * * * discharge the jury and submit the matter to the Court, at this stage. And I think, candidly for the record, I said I would if both sides agreed. I think the Court probably could if both sides agree to do that, but absent agreement by both sides, I don't think the Court has the authority to grant that motion.

“ * * * * *

“ * * * [T]he question in * * * my mind is whether the defendant has a constitutional right to waive a jury at this stage in the proceeding, and I would have to conclude that he does not. And [ State v. Baker, 328 Or. 355, 976 P.2d 1132 (1999),] was a different stage. That was earlier on where the Victim's Rights Initiative, as it was called, required essentially the consent of the State to waive * * * a jury.

“ * * * * *

“ * * * [I]t goes further, that I think at this stage in the process I don't think I even have the discretion—I have the discretion to do it if both sides agree. I—and I said to you I would be willing to, but I don't think I have the discretion to dismiss the jury at this stage.

“The [jury's] question is a little odd. We all noticed that and hence the request that they clarify it if they want to. But I also think that if I was to dismiss the jury based upon that question, I would be in large part speculating about what's in their minds and what's going on in their deliberations and that's not something I think the Court should do. Or, I would be interpreting that question as essentially grounds for a mistrial and that wouldn't be appropriate, either.

“So, that's my reasoning. As I said to you I would be willing to make the decision, but I don't think that the law permits me to do so. So the Motion to Dismiss the Jury and Waive Jury Trial at this stage is denied.”

Despite denying defendant's request, the trial court rendered a provisional verdict to avoid retrial “in the event that * * * an Appellate Court determines that the defendant does have the right to waive his right to a jury trial at this proceeding. * * * I have ruled previously that the defendant does not have that right * * *.” The parties agreed to be bound by the court's verdict if the case were reversed on appeal.

The jury subsequently rendered its verdict, finding defendant guilty of two counts of second-degree assault but acquitting defendant of the other charges. The trial court then read its own (provisional) verdict, which would have acquitted defendant of all charges.

After trial, but before judgment was entered, defendant moved the court to reconsider its decision denying defendant's waiver of jury trial on the grounds that the court did, in fact, have authority to grant the waiver during jury deliberations and that, in denying the waiver “absent agreement by both sides,” it impermissibly conditioned the waiver on the state's consent. In the alternative, defendant moved for a new trial on the same grounds.

At the hearing on the motions, the court recharacterized its decision as a discretionary one:

“I want to say it, again, that * * * I ruled at that time I didn't believe that the defendant had a constitutional right to waive a jury at that stage * * *. And if I'm wrong about that, I trust that if this case does proceed to that level, the Appellate Court will tell me so.

“I don't want it confused, though, with the * * * language that was used or the discussion that occurred where the State said I would be willing to do—or I said, I'd be willing to do that if both sides agreed. I'm not saying that the State has a veto power over that. * * * I am saying that * * * one, I think the defendant doesn't have a right. So that means that the Court has some discretion to do that or not do that, and I exercised the discretion not to, given the late stage in the proceedings that[ ] that was arrived at.

“I do believe the defendant clearly does have a constitutional right to waive a right to a jury trial, before the trial commences, but I think after that, it's discretionary. And this one, coming at the very latest stage in the proceedings that it possibly could, just before verdict * * *. It was not that the State had a veto. I think the case law's very clear on that * * *.

“ * * * * *

“So we're left, then, with whether the Court should reconsider the discretionary decision I exercised in this case, while the jury was out, to not allow the defendant to waive a jury trial.

“ * * * * *

“The biggest consideration was the timing of the waiver and whether that was appropriate under the circumstances of the case.

“My reference, by the way, to the State if the State agreed was, to me it was a parallel to a situation where the State and the Defense are able to agree to some plea to some lesser charge while the jury's out. That does happen fairly regularly and in theory the Courts and in law, I believe, ha [ve] the discretion to accept or not accept that, even at a late stage. But, I would have accepted that, if it was in the nature of a plea agreement at that stage, with both sides agreeing.”

The court took the matter under advisement.

At a subsequent hearing, the trial court denied defendant's “motion for reconsideration” and motion for a new trial. The court elaborated on its reasoning:

“Again, I think it is important to note that this is not a case where the Court is giving the State essentially veto power over that decision. I didn't give it then, I don't give it now. * * * I think it is a Court's decision to be made and I made it and, right or wrong, it's the decision that I've made on my own without reference to veto power of the State.

“To the extent we talked about that, I did indicate that I was willing to make it, if both sides wanted me to, and that was essentially—and I saw that as being akin to the case where—during the time that the jury is out, the attorneys come to the * * * Judge and say, ‘Look, Judge, we've * * * reached an agreement here. We want to settle this matter and negotiate a plea or some negotiated outcome.’ And the Court has the discretion to accept that or not accept that, too. And * * * I was willing to, if indeed the parties were coming to me and making that decision.

“I also pointed out that Judges, in listening to a trial, listen differently * * * when they're finder of fact than they do when they are the * * * legal arbiter, if you will, and the person in charge of the court operations and procedure generally. You look more detailed at the facts. I know I take a lot more notes and I * * * have a lot more focus on the facts when I'm * * * going to be called upon to render a decision, whether it's in a non-jury case or a jury case, than I do when I know for sure that it's a non-jury case.

“I did point out then and I feel like I should point out again that some factor in the Court's decision is my familiarity with a close witness for the Defense, that I thought that that * * * might be perceived as having some influence on my decision if I was the trier of fact.

“ * * * * *

“ * * * [O]ne of the things I've had, quite frankly, a hard time making sure I'm sorting out properly is * * * my individual decision about the facts and verdict as * * * compared to the jury's decision wasn't interfering with my ability * * * to make the right decision over all.

“But that's not really the issue. The issue is whether that was a decision to be made by the jury or by me. The defendant voiced a decision * * * very late in the * * * proceedings to have that being made by me. I have no doubt had it been made at the beginning of the trial, * * * it would have been a non-issue.

“ * * * * *

“I'm satisfied, though, after reviewing this matter thoroughly and thinking about it a great deal, that my decision should stand. * * * But, to the extent that it is in my discretion to change my mind and reconsider, I'd have to...