State v. Haugen, No. CC 04C46224; SC S059519.

• Decision Date: 21 November 2011
• Docket Number: No. CC 04C46224; SC S059519.
• Parties: STATE of Oregon, Plaintiff–Adverse Party, v. Gary HAUGEN, Defendant–Relator.
• Court: Oregon Supreme Court

266 P.3d 68

351 Or. 325

STATE of Oregon, Plaintiff–Adverse Party,

v.Gary HAUGEN, Defendant–Relator.

No. CC 04C46224; SC S059519.

Supreme Court of Oregon, En Banc.

Decided Nov. 21, 2011.

Considered and Under Advisement

Nov. 2, 2011.

On Request for Court and/or the Chief Justice to Act on its Own Motion and Issue an Order Enforcing the Alternative Writ of Mandamus June 29, 2011.

Jeffrey E. Ellis, Oregon Capital Resource Center, Portland, filed the request and reply on behalf of Oregon Capital Resource Center.

Timothy A. Sylwester, Assistant Attorney General, Salem, filed the response for Adverse Party State of Oregon. With him on the response were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

Greg Scholl, of Metropolitan Public Defender, Hillsboro, filed the response for Relator Gary Haugen.BALMER, J.

This matter comes to this court on a “request” that it enforce, on its own motion, an alternative writ of mandamus that it previously issued in connection with Gary Haugen's death warrant proceeding. After that writ issued, this court determined that it had been complied with, and then sua sponte dismissed it. The request to now enforce the dismissed writ is premised on an assertion that the trial court did not comply with the writ. The request is filed by Oregon Capital Resource Center (OCRC), an organization that, when it attempted to participate in the earlier mandamus proceeding, failed to establish any right or authority to do so.¹ As we will explain, we deny OCRC's request, without deciding whether OCRC properly may make it, because we conclude that the judge to whom the writ was addressed has taken the actions that the writ required.

We begin by describing the procedural posture in which OCRC's request arises. We then turn to the contrary arguments advanced by OCRC and the contrary legal analysis urged by the dissenting members of the court.

I. BACKGROUND

This court affirmed Haugen's aggravated murder conviction and death sentence. State v. Haugen, 349 Or. 174, 243 P.3d 31 (2010). Judge Guimond, who had been the trial judge, then held a hearing on whether to issue the death warrant. Haugen was represented at the hearing by two lawyers, Simrin and Goody. Before the hearing, Haugen had made clear his desire to waive all further challenges to his conviction and sentence. Simrin and Goody, however, believed that Haugen was not competent to be executed. They filed a motion to declare Haugen incompetent, supported by Goody's declaration that Haugen had been interviewed and evaluated by a neuropsychologist, Dr. Lezak, who had had concluded that Haugen was not competent to be put to death.

At the hearing, before considering Simrin and Goody's motion, Judge Guimond received a letter from Haugen, asking him to remove Simrin and Goody as his lawyers and to permit him to proceed pro se. Simrin and Goody objected to being removed as Haugen's lawyers, arguing that Judge Guimond had to hold a so-called “Faretta” hearing before accepting Haugen's waiver of counsel and permitting him to go forward without representation; Simrin and Goody urged that Lezak's evaluation was relevant and necessary to that issue.² Judge Guimond disagreed on the necessity of an evidentiary hearing, and instead conducted a colloquy with Haugen. After doing so, and after advising Haugen of the risks of proceeding without counsel, Judge Guimond found Haugen to be competent, concluded that he was knowingly choosing to proceed pro se, and discharged Simrin and Goody. Judge Guimond, however, simultaneously appointed Simrin and Goody as “stand by” counsel to provide legal advice to Haugen at any point at which he might want that advice. Judge Guimond then asked Haugen a series of questions. Based on Haugen's responses to those questions, Judge Guimond concluded that Haugen was validly waiving his rights to further challenge his conviction and sentence. Judge Guimond issued a death warrant setting a date for Haugen's execution.

After the death warrant issued, OCRC filed a petition for a writ of mandamus contending that the trial court had discharged Haugen's lawyers and issued the death warrant without a sufficient inquiry into Haugen's competence. In support of that petition, OCRC filed an affidavit by Lezak attesting that, in her opinion, Haugen was not competent to be executed. Simrin and Goody, Haugen's discharged lawyers, submitted a letter supporting the petition. The state opposed the petition, arguing that OCRC lacked standing to file it. Haugen, appearing pro se, also opposed the petition, arguing principally that neither OCRC nor Simrin and Goody had authority to represent him or to seek relief on his behalf. Haugen also claimed that Simrin and Goody had divulged privileged and confidential attorney-client communications in their letter to the court, without his authorization.

This court concluded that OCRC had not made the necessary showing that it had any legal authority to bring the proceeding on Haugen's behalf. The court further concluded, however, that Simrin and Goody, as Haugen's former lawyers, had authority to challenge Haugen's competency to discharge them. We therefore construed Simrin and Goody's letter as a petition for an alternative writ challenging certain findings, rulings, and orders that Judge Guimond had entered, including the order discharging Simrin and Goody without adequate procedures to determine Haugen's competence to waive counsel and proceed pro se. Having so construed Simrin and Goody's letter, this court issued an alternative writ of mandamus directed to Judge Guimond.

In the order issuing the writ, the court described the state of the record at that point—Simrin and Goody had obtained Lezak's evaluation, Lezak had concluded Haugen was not competent to be executed, and Simrin and Goody had sought an evidentiary hearing on the issue of Haugen's competency, which Judge Guimond had denied. Given those facts, this court concluded that Judge Guimond had been obligated to follow certain statutory procedures—ones that he had not followed—before discharging Simrin and Goody and allowing Haugen to proceed pro se. In particular, the court noted, ORS 137.464 provides that, at a death warrant hearing, if a defendant wishes to waive his or her right to counsel and the trial court has “substantial reason to believe that, due to mental incapacity, the defendant cannot engage in reasoned choices of legal strategy and options,” then the trial court “shall order” that the Oregon Health Authority or its designee assess the defendant's mental capacity. The writ therefore directed Judge Guimond to vacate his related findings, rulings, and orders, including “[t]he finding that defendant Haugen is competent to waive his right to counsel” and “[t]he order removing Simrin and Goody as counsel for defendant Haugen[.]” Judge Guimond was ordered to then take the following further actions or to show cause for not doing so:

“1. Pursuant to ORS 137.464, order that the Oregon Health Authority or its designee perform an assessment of the defendant's mental capacity to engage in reasoned choices of legal strategies and options;

“2. Pursuant to ORS 137.463(3) and (4), after completion of the assessment by the Oregon Health Authority or its designee and any other inquiry you deem appropriate, and before issuing a death warrant, hold an evidentiary hearing and

“a. permit Simrin and Goody to offer evidence pertinent to defendant Haugen's mental capacity to make a competent, knowing, and voluntary waiver of his rights and to the question of whether defendant is competent for the purposes of being executed;

“b. advise defendant Haugen that he is entitled to counsel in any post-conviction proceeding and that counsel will be appointed if the defendant is financially eligible for appointed counsel at state expense;

“c. determine whether defendant [Haugen] wishes to waive counsel, and whether that waiver is competent, knowing, and voluntary;

“d. make findings on the record whether defendant Haugen suffers from a mental condition that prevents Haugen from comprehending the reasons for the death sentence and its implication; and

“e. determine whether defendant Haugen intends to pursue any challenges to the sentence or conviction and, if not, advise defendant Haugen of the consequences and make a finding on the record whether the defendant competently, knowingly, and voluntarily waives the right to pursue available challenges to his death sentence.”

The alternative writ issued on June 29, 2011. Immediately after it issued, Haugen wrote letters to this court vigorously objecting to its issuance. Among other points, he objected to having Simrin and Goody reinstated as his attorneys, asserting that they had a conflict of interest in representing him. Haugen also objected to any use or disclosure of Lezak's evaluation or her opinion of his competency without his written consent. Haugen asserted that his interview with Lezak was confidential and subject to a privilege that he had not waived; that Simrin and Goody had not adequately advised him in connection with Lezak's evaluation; and that Simrin and Goody's actions in disclosing Lezak's opinion without his consent were both unethical and illegal. Haugen asked this court, if it determined that Haugen did not have a right to object to the release of information about Lezak's examination, to appoint independent counsel to represent him on that issue.

This court responded to Haugen by letter, advising him that the case had been returned to the circuit court, where further proceedings were to be conducted. The court informed Haugen that copies of his letters raising his objections would be provided to Judge Guimond. The court's letter also acknowledged Haugen's request to have separate counsel appointed to represent him on “medical records and other issues.” The letter advised Haugen that copies of his letters would be forwarded to the Office of Public Defense...