State v. Martineau

Decision Date27 November 2019
Docket NumberA165409
Citation300 Or.App. 784,455 P.3d 1020
Parties STATE of Oregon, Plaintiff-Respondent, v. Dale William MARTINEAU, Defendant-Appellant.
CourtOregon Court of Appeals

300 Or.App. 784
455 P.3d 1020

STATE of Oregon, Plaintiff-Respondent,
v.
Dale William MARTINEAU, Defendant-Appellant.

A165409

Court of Appeals of Oregon.

Argued and submitted June 20, 2019.
November 27, 2019


Daniel C. Bennett, Deputy Public Defender, argued the cause for appellant. Also on the opening brief and a supplemental brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services. Dale William Martineau filed a supplemental brief pro se.

Lauren P. Robertson, Assistant Attorney General, argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

SHORR, J.

300 Or.App. 785

Defendant appeals from a judgment of conviction for robbery in the second degree, menacing, theft in the second degree, and unauthorized use of a vehicle. Defendant assigns error to the trial court’s denial of his

455 P.3d 1022

midtrial request to represent himself.1 For the reasons set forth below, we reverse and remand.

The relevant facts are undisputed and procedural in nature. Defendant was charged with seven counts of robbery, menacing, theft, unlawful use of a vehicle, and criminal mischief based on allegations that defendant drove away with an acquaintance’s truck and, brandishing a gun, demanded money from the cash register at two different Fred Meyer locations. Defendant’s case proceeded to a jury trial. Toward the end of the first day of trial, defendant asked the trial court if he could say something in the presence of the jury. The court told defendant no, and defendant attempted to speak again. The court interrupted defendant and instructed him, "Do not say anything." Once the jury left the courtroom, defendant explained that he wanted a new attorney because he was frustrated with his attorney, Taylor, refusing to cross-examine witnesses. The court told defendant that it would address defendant’s concerns the next morning.

The following morning, defendant requested to terminate his counsel and represent himself. Defendant explained that he was "frustrated" with his attorney’s failure to call witnesses. The trial court first informed defendant that, if he had another outburst in front of the jury, the court would hold defendant in contempt and have him removed from the proceedings. Then the court denied defendant’s request. The court explained:

"I also want to tell you that I’m not going to remove Mr. Taylor from your—as your counsel. And I want you to know that Mr. Taylor’s a very, very good attorney; that
300 Or.App. 786
he has done hundreds and hundreds of cases. And one of the hardest things for clients to understand is that lawyers have to make decisions about what they’re doing. And another hard thing for lawyers to do is to not ask questions. But it’s a really smart attorney that doesn’t ask questions. In this particular case Mr. Taylor knows the evidence that’s going to be presented and Ms. Martin knows the evidence that’s going to be presented. And when he makes a choice not to ask questions of a witness, that’s because he doesn’t want the—the evidence to come out a second time."

Afterward, the jury was brought in, and the trial resumed.

Later that day, the trial court returned to the topic of defendant’s request to represent himself. The court asked whether defendant was "still willing" to be represented by his attorney.

"DEFENDANT: Yeah. Well, I mean, I really don’t have no choice, right?

"THE COURT: All right. All right. So we’re going to go ahead and continue with [your attorney] representing you."

The trial resumed. Defendant was convicted on six counts and acquitted on one.

Defendant assigns error to the trial court’s denial of his request to represent himself, arguing that the court failed to weigh, on the record, the relevant competing interests when denying his request. The state concedes the error, and we accept that concession.

A defendant’s right to self-representation is found within Article I, section 11, of the Oregon Constitution.2 When that right is invoked in the middle of a trial, however, it is not unqualified. State v. Hightower , 361 Or. 412, 417, 393 P.3d 224 (2017). "In particular, once a trial has begun, a number of interests other than the defendant’s Article I, section 11, rights come into play." Id. at 417, 393 P.3d 224. The trial court has discretion to deny a defendant’s midtrial request to waive counsel "if it has reason to conclude that granting the

300 Or.App. 787

motion would result in disruption of the proceedings." Id. at 418, 393 P.3d 224. The court must weigh the relevant competing interests on the record. Id. at 421, 393 P.3d 224. Those interests include a consideration

455 P.3d 1023

of defendant’s right to self-representation following a knowing and voluntary waiver and the court’s "overriding obligation to ensure the fairness and integrity of the trial and its inherent authority to conduct proceedings in an orderly and expeditious manner." Id. at 417-18, 393 P.3d 224. Here, the court explained only that it was denying defendant’s request and that, in the court’s view, defendant had a "very, very good attorney." The court did not weigh any relevant considerations on the record. Accordingly, we accept the state’s concession that the trial court erred.

The primary dispute in this case is the proper disposition. Defendant argues that remand for a new trial is appropriate. The state argues that we should remand to the trial court for the limited purpose of engaging in the proper weighing of interests. The state argues that, if the trial court’s conclusion after conducting such analysis is that the court would have denied defendant’s request to represent himself, the court should reinstate defendant’s conviction.

At the outset, we rejected—and the state acknowledges that we rejected—the same argument in State v. Nyquist , 293 Or. App. 502, 507, 427 P.3d 1137 (2018). In that case, the state had argued that, if we concluded that the trial court erred in denying the defendant’s midtrial request to represent himself, "the trial court should have the ability to consider defendant’s request for self-representation, to conduct proper balancing on the record, and to determine whether a new trial should be granted in light of its decision." Id. (internal quotation marks omitted). In rejecting that argument, we explained that, "[b]oth before and after the Supreme Court’s decision in Hightower , we have held that a trial court’s abuse of discretion in rejecting a defendant’s request for self-representation requires reversal of the defendant’s convictions and remand for a new trial." Id. (citing State v. Ortega , 286 Or. App. 673, 675, 399 P.3d 470 (2017), and State v. Miller , 254 Or. App. 514, 524, 295 P.3d 158 (2013) ).

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4 cases
  • State v. Omar
    • United States
    • Oregon Court of Appeals
    • 8 Abril 2020
    ...(reversing and remanding for new trial when trial court erred in denying midtrial request to represent self); State v. Martineau , 300 Or. App. 784, 455 P.3d 1020 (2019) (same); State v. Hightower , 301 Or. App. 750, 459 P.3d 266 (2020) (adhering to the Nyquist disposition). Defendant argue......
  • State v. Gaul, A166234
    • United States
    • Oregon Court of Appeals
    • 4 Diciembre 2019
  • State v. Hightower
    • United States
    • Oregon Court of Appeals
    • 15 Enero 2020
    ...permitted. Or Const., Art. VII (Amended), § 3 ; ORS 19.415(2) ; former ORS 138.230 (2015).1 Our recent decision in State v. Martineau , 300 Or. App. 784, 455 P.3d 1020 (2019), confirms that defendant is correct. There, we considered and rejected virtually identical arguments from the state ......
  • State v. Muhammad
    • United States
    • Oregon Court of Appeals
    • 3 Marzo 2021
    ...case, the court erred by reentering the judgment of conviction rather than granting defendant a new trial. See State v. Martineau , 300 Or. App. 784, 787, 455 P.3d 1020 (2019) (concluding that a trial court's error in denying a defendant's request for self-representation requires reversal a......

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