State v. Menefee
| Decision Date | 31 December 2014 |
| Docket Number | A142997.,CR0900563 |
| Citation | 268 Or.App. 154,341 P.3d 229 |
| Court | Oregon Court of Appeals |
| Parties | STATE of Oregon, Plaintiff–Respondent, v. Damascus Lord Seymor MENEFEE, Defendant–Appellant. |
Anne Fujita Munsey, Senior Deputy Public Defender, argued the cause for appellant.
With her on the opening and reply briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services. Damascus Lord Seymor Menefee filed the supplemental brief pro se.
Timothy A. Sylwester, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before ARMSTRONG, Presiding Judge, and NAKAMOTO, Judge, and EGAN, Judge.
Defendant appeals a judgment convicting him of first-degree robbery, ORS 164.415 ; second-degree robbery, ORS 164.405 ; first-degree theft, ORS 164.055 ; felon in possession of a firearm, ORS 166.270 ; and unlawful use of a weapon, ORS 166.220, raising eight assignments of error. We write only to address defendant's first through third assignments of error, in which he argues that the trial court erred when it (1) concluded that he had waived his right to counsel; (2) excluded defendant from the courtroom for the majority of the trial; and (3) conducted the majority of the trial without the presence of defendant or defense counsel. For the reasons below, we reverse and remand.1
The facts of this case are procedural and not in dispute. The key events occurred on the day before and the first day of trial and led to defendant's self-representation and later removal from the courtroom.
To provide some context for the facts of this case, we note that defendant employed what is known colloquially as the “flesh and blood” defense, which is “the embodiment * * * of a movement sometimes referred to as the ‘sovereign citizen’ or ‘anti-government’ movement.” See James Erickson Evans, Comment, The “Flesh and Blood” Defense, 53 Wm & Mary L Rev 1361, 1363 (2012). A common feature of that defense is the defendant's claim that he or she is a “flesh and blood” person, who is distinct from the person named in the indictment and that, accordingly, the trial court lacks jurisdiction over the defendant. Id. at 1372. That was defendant's argument in this case.
The state charged defendant with first-degree robbery, second-degree robbery, first-degree theft, felon in possession of a firearm, and unlawful use of a weapon in connection with an armed robbery. In the pretrial proceedings, defendant asserted that he was not the “debtor juristic person Damascus Lord Seymor Menefee,” listed in the charging instrument, but rather that he was the “secured party creditor” over that “corporate entity.”2 Accordingly, defendant contended that the court had to prove that it had “subject matter jurisdiction” over him, the “flesh and blood, sentient man.”
Defendant's trial was scheduled to begin on July 6. On that date, defendant was in custody and appeared without counsel. The trial court warned defendant about the risks of proceeding pro se and asked him repeatedly if he wanted to postpone trial and have a lawyer appointed to represent him. However, each time the court asked defendant about counsel, defendant refused to give a direct answer and continued to assert that he was not waiving any of his rights and that the court had failed to establish that it had jurisdiction over him. Ultimately, the trial court ruled that defendant's responses reflected a decision on his part to waive his right to counsel and to proceed pro se. In response to that ruling, defendant stated, “I object to that completely, wholeheartedly, with every right that I reserve as a human being [.]”3 Defendant, however, did not state that he wanted an attorney appointed to represent him.4 The prosecutor then asked the court to consider whether it should, on its own motion, appoint defendant a lawyer, even if just to serve as a legal advisor. However, defendant stated that he was “ready to proceed today without a lawyer,” and the court decided not to appoint counsel for defendant on its own.
As the court continued to address other pretrial issues, defendant renewed, multiple times, his objection to the court's authority over him as well as the legitimacy of the proceedings. The court overruled defendant's repeated jurisdictional arguments and objections.
The next day, before the trial court swore in the jury, the court told defendant three separate times that he still had an opportunity to have appointed counsel represent him. Defendant did not respond that he wished to have counsel appointed. Defendant had apparently told a deputy that he intended to walk out of the courtroom during the proceedings, and the court asked defendant about his intention to do so. Defendant stated that he intended “to proceed sui juris until” he was “done proceeding.”5
After dealing with other pretrial issues, the court again addressed defendant's jurisdictional claim, ultimately rejecting it again. Defendant then asserted:
As a result, the court ordered that, at defendant's request, he would be removed from the courtroom. Defendant was taken out of the courtroom.
The court then recessed to consider whether it could proceed without defendant given that he was proceeding pro se. After the court reconvened, the prosecutor summarized his research on the issue, citing State v. Harris, 291 Or. 179, 630 P.2d 332 (1981), and State v. Skillstad, 204 Or.App. 241, 129 P.3d 232 (2006), rev. den., 342 Or. 727, 160 P.3d 992 (2007). The prosecutor explained to the court that, under those cases, a defendant can waive his or her right to be present and that the trial can proceed without a defendant even if the defendant is not represented by counsel. At that point, however, one of the deputies indicated that defendant wished to return to the courtroom. The court told the deputy to bring him in. It then stated that the question whether it could proceed in defendant's absence was now moot because defendant wished to return but that it was finding that defendant had left freely and voluntarily.
After the court swore the jury in and delivered its preliminary jury instructions, the prosecutor delivered his opening statement in the usual course. Defendant made a single objection regarding the relevance of evidence that the prosecutor had mentioned; aside from that objection, defendant did not interrupt the proceedings.
Defendant's opening statement focused on his position that he was “the secure party” and a “flesh and blood living breathing sentient natural person and private man,” that the indictment had been returned against a “legal creation,” and, therefore, that the court lacked jurisdiction over him. Defendant's opening statement began as follows:
At that point, the prosecutor objected to defendant's reference to his lack of an attorney; the court told defendant to confine his opening statement to what he anticipated the evidence would be. Defendant then continued:
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Chapter § 6.2
...is a fundamental constitutional right under Article I, section 11, of the Oregon Constitution. State v. Menefee, 268 Or App 154, 184, 341 P3d 229 (2014). But a defendant may waive the right to be present at trial. State v. Harris, 291 Or 179, 185, 630 P2d 332 (1981). A waiver is the intenti......