State v. Hightower
Decision Date | 09 December 2015 |
Docket Number | A154220.,120632737 |
Citation | 275 Or.App. 287,364 P.3d 29 |
Parties | STATE of Oregon, Plaintiff–Respondent, v. Gregory Leon HIGHTOWER, aka Gregory Leon Hightower, Sr., Defendant–Appellant. |
Court | Oregon Court of Appeals |
Peter Gartlan, Chief Defender, and Robin A. Jones, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Peenesh H. Shah, Assistant Attorney General, filed the brief for respondent.
Before SERCOMBE, Presiding Judge, and HADLOCK, Judge, and TOOKEY, Judge.
Following a jury trial, defendant was convicted of one count of encouraging child sexual abuse in the first degree, ORS 163.684 ; one count of sexual abuse in the second degree, ORS 163.425 ; four counts of promoting prostitution, ORS 167.012 ; and one count of compelling prostitution, ORS 167.017. On appeal from the resulting judgment, defendant raises three assignments of error. We reject without discussion defendant's first and second assignments of error, which relate to alleged vouching by police officers testifying at his trial. We write to address defendant's third assignment of error, in which he argues that the trial court violated his right to self-representation under Article I, section 11, of the Oregon Constitution1 and the Sixth and Fourteenth Amendments to the United States Constitution2 when it denied his midtrial request to represent himself pro se. As explained below, the trial court did not abuse its discretion in denying defendant's request, and we affirm.
The relevant facts are procedural. Defendant was charged with several crimes related to his involvement with prostitution and sex trafficking. Hanrahan was appointed to represent defendant, and they had a contentious relationship throughout the proceedings. Defendant moved for substitution of counsel three times, raising numerous complaints, but primarily challenging the quality of Hanrahan's pretrial investigation and his conduct of the trial.3 Before trial, defendant asserted that Hanrahan failed to properly interview potential witnesses, failed to assure that they would be available for trial, and failed to investigate recantations by defendant's victims in letters they wrote to defendant while he was in jail. During the trial, defendant contended that Hanrahan did not make adequate use of inconsistent statements by the victims as impeachment evidence. The trial court denied the motions for substitution of counsel, concluding each time that defendant's complaints about Hanrahan's representation were disputes over trial strategy and did not provide a basis for removing Hanrahan and appointing a new attorney. The trial court compared defendant's complaints about Hanrahan's performance to "arguing with your doctor about where the incision is going to be[,]" explaining that it was counsel's job to decide "what evidence is put on or what questions are asked or what arguments are made[.]"
As the trial progressed, defendant repeatedly disrupted the proceedings. He interjected while the state's witnesses were testifying to contradict their statements, accuse them of lying, or "object" to their statements. The court repeatedly admonished defendant to refrain from interrupting, and, three times, it threatened to remove defendant from the courtroom if his disruptions continued. In spite of the court's warnings, defendant continued to disrupt the proceedings.
As Hanrahan cross-examined the state's final witness, defendant requested that he be allowed to represent himself pro se. Defendant explained that he wanted to "do this on [his] own" because Hanrahan had failed to elicit testimony from that witness, a detective, about inconsistent statements that two of the victims had made to the detective concerning defendant's use of a BB gun to shoot out the windows of a victim's father's house. The court explained that, at that point in the proceedings, it would not grant defendant's request, particularly given that defendant was making his request to put on evidence irrelevant to the issues in the trial:
The court later added that "[t]here hasn't been * * * a single word said in this courtroom about somebody shooting out * * * windows." Although Hanrahan then argued that the court should grant defendant's request, the court denied the request:
After the state rested, defendant again complained to the court about Hanrahan, saying that he had lied to defendant, telling defendant that he would offer letters that defendant had written to one of the victims as evidence and then refusing to do so. Defendant then reiterated his request to proceed pro se, and the court denied the request. Hanrahan then explained that the defense's position was that "the right to proceed pro se is absolute, at least in the absence" of evidence that defendant "cannot proceed without disrupting this tribunal." Hanrahan further argued that "the only basis for disruption so far has been [defendant's] contentions with me, and if you remove me from the equation, then the disruptions are going to go away."
The court responded:
Hanrahan again argued that the court was required to grant the motion, regardless of the fact that it was made midtrial:
Later in the trial, after defendant interrupted Hanrahan's argument for a motion for judgment of acquittal, Hanrahan again asserted that defendant should be allowed to proceed pro se:
The court again denied the motion. Hanrahan continued to represent defendant for the remainder of the trial, and defendant was ultimately convicted of the charges discussed above.
On appeal, defendant argues that, under Article I, section 11, the trial court erred as a matter of law because it denied his request without "articulat [ing] a legally permissible reason" for doing so. The state responds that the trial court's statements in denying the request include the "implicit conclusion" that granting the request would be disruptive. And, in light of the record in this case, the state urges us to conclude that the court did not abuse its discretion in denying defendant's motion.4
Article I, section 11, protects the right of a criminal defendant to waive the right to counsel and proceed pro se. State v. Miller, 254 Or.App. 514, 523, 295 P.3d 158 (2013) ; State v. Verna, 9 Or.App. 620, 624–25, 498 P.2d 793 (1972). However, the right to self-representation is not unlimited. A trial court may not allow a defendant to proceed pro se without first determining that the defendant's decision to waive his or her right to counsel is "intelligent and understanding." State v. Blanchard, 236 Or.App. 472, 475, 236 P.3d 845 (2010) (internal quotation marks omitted). Furthermore, a trial court may deny a self-representation request if it is unclear or equivocal or if granting the request will result in the "disruption of the orderly conduct of the trial." Id. at 476, 236 P.3d 845 ; State v. Fredinburg, 257 Or.App. 473, 482, 308 P.3d 208, rev. den., 354 Or. 490, 317 P.3d 255 (2013) ().
Defendant argues that the trial court erred in denying his request to represent himself because it did not find, on the record, that granting the request would be disruptive. Because we understand the trial court's order to have included an implicit finding that granting defendant's request would have been disruptive to the orderly progress of the trial, we reject defendant's contention. See Fredinburg, 257 Or.App. at 484, 308 P.3d 208 (...
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State v. Hightower
...about potential disruption of the trial and, because of that concern, did not amount to an abuse of discretion. State v. Hightower , 275 Or.App. 287, 293, 364 P.3d 29 (2015). We conclude that the trial court erred as a matter of law in concluding that a defendant may not assert the right to......
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State v. Garcia-Rocio
...held that the court did not abuse its discretion in denying the defendant's self-representation request. State v. Hightower , 275 Or. App. 287, 294, 364 P.3d 29 (2015), rev'd , 361 Or. 412, 393 P.3d 224 (2017). On review, the Supreme Court disagreed. It explained that a trial court has disc......
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