State v. McCabe
Decision Date | 12 September 1990 |
Citation | 103 Or.App. 426,797 P.2d 406 |
Parties | STATE of Oregon, Respondent, v. David E. McCABE, Appellant. 882189; CA A60587. |
Court | Oregon Court of Appeals |
Ingrid A. MacFarlane, Deputy Public Defender, Salem, argued the cause for appellant. With her on the brief was Sally L. Avera, Public Defender, Salem.
Ann F. Kelley, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
Before EDMONDS, P.J., and RIGGS and NEWMAN, JJ.
Defendant appeals his convictions for possession and delivery of a controlled substance. ORS 475.992(4); ORS 475.992(1). He argues that the court erred by denying his request for appointment of different counsel. 1 We reverse.
Defendant was charged with possession and delivery of a controlled substance. Counsel was appointed for him, and he pled not guilty. Before trial, defendant wrote a letter asking the court to appoint different counsel. On February 17, 1989, the court held a hearing on defendant's request, without his counsel being present. Only part of that hearing is reported, but the record reveals that defendant was having difficulty contacting counsel and that he had concerns about his attorney's health problems and ability to represent him at trial. The court told him:
After further discussion, defendant replied that he would try to work things out with his attorney. 2
On February 23, 1989, a hearing was held on a proposed change of plea by defendant. Defendant's attorney appeared without defendant and indicated that defendant had reneged on a plea bargain that he had been trying to arrange with the District Attorney and that defendant had requested a new lawyer. Counsel stated:
The court stated to counsel that it would not appoint another attorney simply because defendant wants to "play games with the court[,]" and that, if defendant wanted to fire his attorney, then he could represent himself.
Defendant was then brought into court. The court did not inquire further about defendant's specific complaints about his attorney. The court told him:
Defendant elected to represent himself. The court ordered his previous attorney to be available in the courtroom if needed.
On February 28, the morning of trial, defendant moved for a continuance and indicated that he was not ready to represent himself. The court denied the motion and told defendant that the trial was going forward that day. Defendant represented himself and was convicted. On appeal, he argues that the court abused its discretion by denying his request for new counsel without inquiring into defendant's complaints. The state responds that defendant implicitly withdrew the request for new counsel on February 17, by saying that he would try to work things out with his attorney. It also argues that the court thoroughly explored defendant's reasons for his dissatisfaction with counsel.
In State v. Heaps, 87 Or.App. 489, 742 P.2d 1188 (1987), we said:
...
To continue reading
Request your trial-
State v. Makinson
...that the court erred in not inquiring as to the reasons he believed that his attorney was unprepared. He cites State v. McCabe, 103 Or.App. 426, 797 P.2d 406 (1990), State v. Davis, 110 Or. App. 358, 822 P.2d 736 (1991), and State v. Bargas-Perez, 117 Or.App. 510, 844 P.2d 931 (1992), but t......
-
State v. Bargas-Perez, BARGAS-PERE
...at 494, 742 P.2d 1188. The error requires a new trial. State v. Davis, supra, 110 Or.App. at 361, 822 P.2d 736; State v. McCabe, 103 Or.App. 426, 430, 797 P.2d 406 (1990); State v. Heaps, supra, 87 Or.App. at 494, 742 P.2d Defendant also assigns error to the trial court's denial of his moti......
-
State v. Snyder, CR-0834
...with financial information that invites further inquiry, the court has a responsibility to make that inquiry. See State v. McCabe, 103 Or.App. 426, 430, 797 P.2d 406 (1990). The trial court was aware that defendant's initial estimate of his assets was questionable, that the watch may have b......