State v. Lacey

• Decision Date: 09 November 2016
• Docket Number: A156849 (Control) , A156850
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Richard Larry LACEY, Defendant–Appellant.
• Court: Oregon Court of Appeals

282 Or.App. 123

385 P.3d 1151

STATE of Oregon, Plaintiff–Respondent,

v.Richard Larry LACEY, Defendant–Appellant.

A156849 (Control)

A156850

Court of Appeals of Oregon.

Argued and submitted April 28, 2016.

November 9, 2016

Eric R. Johansen, Deputy Public Defender, argued the cause for appellant. With him on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

LAGESEN, J.

Defendant, who elected to represent himself at his criminal trial, behaved abysmally throughout the course of that trial. The trial court afforded defendant great patience but, shortly before closing argument, after repeatedly informing defendant that his behavior risked his removal from court and the trial proceeding in his absence, the court found defendant in contempt, declared defendant to have forfeited his right to present closing argument and otherwise participate in the proceedings, and ordered defendant removed from the courtroom. The trial continued in defendant's absence and, because defendant had been self-represented, no one appeared on defendant's behalf. The jury convicted defendant of most charges, and also found against him as to several sentencing enhancement factors at the subsequent trial on those factors, from which defendant also was excluded.

Defendant has appealed. Relying on our decision in State v. Menefee , 268 Or.App. 154, 341 P.3d 229 (2014), decided after defendant's trial, defendant argues that the trial court's continuation of the trial in his absence violated his Sixth Amendment right to representation because the trial court did not take steps to protect defendant's right to representation, and because defendant did not knowingly and intelligently waive that right. Reviewing for legal error, see generally Menefee , 268 Or.App. at 183–86, 341 P.3d 229 (so reviewing same question), we agree with defendant and reverse.

It is unfortunate that we had not yet decided Menefee at the time of defendant's trial, because that decision would have assisted the trial court in addressing the complex problems created by defendant's misconduct. In Menefee , we set forth the procedure that the Sixth Amendment requires a trial court to follow when a self-represented defendant's misconduct causes the court to remove the defendant from the courtroom. 268 Or.App. at 185–86, 341 P.3d 229. The issue was one of first impression in Oregon and, after reviewing the case law from other state and federal courts to have considered the question, we observed that a situation like that confronted by the trial court here raises "complex constitutional issues," because it implicates three related but distinct Sixth Amendment rights: (1) the right to be present at trial; (2) the right to self-representation; and (3) the right to representation. Id. at 184–85, 341 P.3d 229. Persuaded by the Ninth Circuit's analysis in United States v. Mack , 362 F.3d 597 (9th Cir. 2004), we held that a defendant may forfeit the first two of those rights by misconduct, but does not forfeit the third: "although a defendant who acts out at trial may forfeit the right to be present and the right to self-representation in the proceeding, the defendant does not also forfeit the right to any representation at trial." Menefee , 268 Or.App. at 184–85, 341 P.3d 229.

Consequently, because a criminal defendant does not forfeit the right to representation by misconduct (only the rights to self-representation and to be present), "after a trial court has removed a pro se defendant for his or her misconduct, the trial court cannot proceed in the defendant's absence unless and until the trial court has either secured the defendant's waiver of his or her right to representation at trial or has taken some other course of action that protects the defendant's right to representation, which may include the appointment of counsel." Id. at 185, 341 P.3d 229. Thus, in Menefee , where the trial court continued the trial in the defendant's absence without appointing counsel or obtaining a waiver of the defendant's right to representation, we concluded that the defendant's Sixth Amendment right to representation had been violated and that reversal was required. Id.

As the Ninth Circuit recognized in Mack , one of the primary rationales for this approach is to protect the structural integrity of our criminal justice system. Where a criminal case is tried against a vacant defense table, the adversarial process has broken down, and cannot ensure that the convictions rendered are fair and reliable. Our system strives to be fair, even to those who, like the defendant in Menefee and defendant here, work the hardest to undermine it. And the Sixth Amendment imposes upon us, as courts, an obligation to do what we can to prevent them from succeeding. See Mack , 362 F.3d at 603 ("no matter how vexed [a court] becomes with a defendant's noisome nonsense," the Sixth Amendment does not permit the court to "eliminate important elements of a trial"). This does not mean that a court has to tolerate an obstreperous defendant's presence in the courtroom, but it does mean that the court may have to appoint counsel for a defendant who previously elected to proceed pro se , notwithstanding the awkwardness of doing so mid-trial. For this reason, as we observed in Menefee , "it is advisable for a trial court to appoint advisory counsel for a defendant whom the court suspects will be disruptive so that the court can appoint that lawyer as counsel if the defendant can no longer represent himself." Menefee , 268 Or.App. at 185 n. 13, 341 P.3d 229.

In this case, after defendant forfeited his rights to be present and self-representation, the trial court continued the trial in defendant's absence without complying with the procedure set forth in Menefee . The court did not secure a waiver of defendant's right to representation, it did not appoint counsel, and it did not take other measures to protect defendant's right to representation after it removed him from the courtroom. As a result, defendant was deprived both of closing argument and the ability to participate in the trial on the sentencing enhancement factors.

Under Menefee , it appears that the trial court erred, and that the error requires reversal. Menefee , 268 Or.App. at 186, 341 P.3d 229 (trial court's decision to continue trial without securing waiver of right to representation or otherwise taking steps to protect right to representation required reversal); Mack , 362 F.3d at 603 (same). The state and the dissenting opinion, however, advance several arguments as to why that should not be the case. For the following reasons, we are not persuaded.

First, the state argues that defendant did not preserve his claim of error. The state is correct that defendant did not present to the trial court the same constitutional argument that he is presenting to us. However, defendant made clear his desire to present closing argument, objected to being excluded from his trial, and argued that the court was not letting him present his case. In addition, the court and the prosecutor recognized that the court's removal of defendant implicated his constitutional rights. The prosecutor specifically requested the court to make a finding that defendant had "essentially forfeited his right to remain in the Courtroom for the remainder of the Trial," and the court found that, as a result of his misconduct, defendant "thereby forfeited the right to make his closing argument and to be present during the rest of the proceedings in this matter or today's proceedings."

In Menefee , we held that objections like those made by defendant in this case were sufficient to preserve the defendant's assignment of error, where the record also indicated that the prosecutor and the court were aware that proceeding in the defendant's absence raised constitutional concerns. 268 Or.App. at 174, 341 P.3d 229. The circumstances in this case are not meaningfully distinguishable. As a result, we conclude that defendant has preserved his assignment of error.

Second, the state and the dissenting opinion argue that Menefee does not govern this case because in this case the trial court warned defendant repeatedly that his misconduct could result in his removal from the courtroom and the case proceeding without him; the state notes that it does not appear that such warnings were given in Menefee . In the dissenting opinion's view, Menefee does not control this case because in Menefee we did not expressly address whether the procedure described would apply where a defendant had been warned expressly of the risk that the defendant would forfeit the right to representation by misconduct. 282 Or. App. at 137, 385 P.3d at 1158 (Garrett, J., dissenting). The state's argument is different. It does not dispute that Menefee required the trial court to obtain a knowing and voluntary waiver of the right to representation but argues that Menefee does not dictate reversal because, under Menefee 's framework, the warnings given by the trial court would permit the inference that defendant knowingly and voluntarily waived his right to representation when he engaged in the misconduct that led to his exclusion from the courtroom.

We do not think that the dissenting opinion's approach can be squared with the interpretation of the Sixth Amendment adopted by Menefee . We stated our holding unequivocally, rejecting the notion that a defendant can forfeit the right to representation by misconduct and explaining, precisely, what trial court must do when excluding a pro se defendant from the courtroom: "[A]fter a trial court has removed a pro se defendant for his or her misconduct, the trial court cannot proceed in the defendant's...