State v. Miller

• Decision Date: 22 August 2007
• Docket Number: No. A126149.,No. 01CR0698.,01CR0698.,A126149.
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Stanley Lee MILLER, Defendant-Appellant.
• Court: Oregon Court of Appeals

166 P.3d 591

214 Or. App. 494

STATE of Oregon, Plaintiff-Respondent, v. Stanley Lee MILLER, Defendant-Appellant.

No. 01CR0698.

No. A126149.

Court of Appeals of Oregon.

Argued and Submitted April 18, 2007.

Decided August 22, 2007.

Jesse Wm. Barton, Salem, argued the cause and filed the briefs for appellant.

Ryan Kahn, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and SIMPSON, Judge pro tempore.

LANDAU, P.J.

Defendant was convicted, after a jury trial, of first-degree sodomy, first-degree rape, second-degree kidnapping, and unlawful use of a weapon. He now appeals, assigning error to (1) the trial court's decision to deny his motion for substitute counsel and instead require him to proceed pro se during the first day of trial; (2) the imposition of consecutive sentences without submitting the issue to a jury; (3) the trial court's instruction to the jury that it could convict by less than a unanimous jury and its entry of judgment on a less than unanimous verdict. We reject each of those contentions and affirm.

I. FACTS

The relevant facts are not in dispute. Defendant received court-appointed counsel. After 20 months of trial preparation—and two weeks before the scheduled trial date— defendant's first counsel withdrew due to an undisclosed ethical conflict. The trial court appointed a second attorney for defendant and also granted a postponement so that new counsel could prepare for trial. After six months, that attorney also moved to withdraw due to an undisclosed conflict of interest, and the court granted the motion. The court appointed defendant's third attorney, Hendershott, and set a trial date some five months out.

On the first day of trial, the court held voir dire and impaneled the jury. The attorneys gave their opening statements, and the state called its first witness, the victim. At that point, defendant interrupted the proceeding and stated, "As God is my witness, my lawyer is not properly representing me. He has not prepared a defense." The following colloquy then occurred:

"THE COURT: Just a moment—

"THE DEFENDANT: And the judge—

"THE COURT: Time out.

"THE DEFENDANT: And the-and the Court are—are—

"(Judge whistles.)

"THE DEFENDANT: — are leading the jury to a guilty verdict.

"THE COURT: Time out. * * *

"* * * * *

"THE COURT: All right. Sit down. Counsel, do you wish to be heard?

"MR. HENDERSHOTT: Perhaps we should discuss it with the jury at absence?

"THE COURT: Yes. All right. Very well. [Court dismisses jury to jury room.]

"* * * * *

"MR. HENDERSHOTT: I take no position in the matter, Your Honor. * * * [Defendant] has some ideas about evidence that has not proved fruitful in investigation. I declined to proceed with that and he doesn't like it.

"THE DEFENDANT: That's not— that's not —

"MR. HENDERSHOTT: If the Court wants to relieve me, then that's fine. I'll get in my truck and I'll go home.

"THE COURT: Thank you. [Defendant]? Anything you want to say to the Court?

"THE DEFENDANT: Yes. He's—he's not adequate counsel. He—he's been very—yesterday we had evidence suppressed and that's what our whole thing was going on. He—he already told me two weeks ago that he wasn't very familiar with DNA. He—he's not adequate. * * * [T]he law says that I am due to adequate counsel. And now that we have to fight this a different way, I feel that I do not have adequate counsel.

"* * * * * "THE COURT: You have two choices. Now listen to me.

"THE DEFENDANT: Okay.

"* * * * *

"THE COURT: * * * Now as far as your complaints about your counsel, we will proceed without your counsel serving as your court appointed counsel. I will ask Mr. Hendershott, in that event, to act as standby counsel in case you have any questions you want to ask him during the trial. But you must understand that in that event you will be proceeding without the benefit of counsel.

"THE DEFENDANT: Is it not my legal right to have proper, adequate counsel?

"THE COURT: Yes. But as far as I know, based on my examination of the record and my knowledge of Mr. Hendershott, he is more than adequately competent to handle your case.

"THE DEFENDANT: He doesn't know—

"THE COURT: There is nothing before —

"THE DEFENDANT:—about DNA.

"THE COURT:—this Court—there is nothing before this Court at this time that gives me any reason at all to believe that he is not fully competent to represent you in this case. * * * So it is your choice whether you want to proceed with counsel or without counsel.

"THE DEFENDANT: Counsel also had an ethical issue with me as well that he told me that he would have to step down as my attorney and —

"THE COURT: What is the ethical issue?

"* * * * *

"MR. HENDERSHOTT: [Defendant] had two previous lawyers, both of whom withdrew under circumstances that they can't talk about. I have suspicions, but never got to that point, which may be due to a client who wises up after it happens a couple of times. But it's borderline.

"Like I said, there were issues that we tried to investigate. Those avenues were not fruitful and I declined to proceed further in that line of inquiry—

"THE COURT: All right.

"MR. HENDERSHOTT:—as a matter of presenting evidence. [Defendant] is highly unhappy about that.

"THE COURT: Anything further?

"MR. HENDERSHOTT: I will move to withdraw if he insists on proceeding in that area because I would have to.

"THE COURT: Do the two of you want to talk for a few minutes to decide how we're going to proceed here?

"THE DEFENDANT: I guess, yes."

The court recessed so that defendant and Hendershott could confer in private. The colloquy then resumed.

"THE COURT: Mr. Hendershott?

"MR. HENDERSHOTT: Yes, Your Honor, I had some discussion with [defendant]. My suspicions about the problems we were having before are confirmed. I move to resign.

"THE COURT: All right. [Defendant], your attorney has asked to withdraw as your counsel in this case. Is there anything you want to say? I gather from your previous statements that you're not satisfied with his services on your behalf, is that correct?

"THE DEFENDANT: Yes, sir.

"THE COURT: All right. If he withdraws under these circumstances and at this late hour, the record will show that opening statements have been made in this trial, and that the State has called its first witness.

"In view of that fact, unless you have another suggestion that is acceptable to the Court, we're going to proceed with the trial. I will instruct Mr. Hendershott to remain and serve as standby counsel. And as standby counsel, he will be available to assist you to the extent you desire his services. Do you understand that?

"THE DEFENDANT: Yes, sir.

"THE COURT: Do you have any questions about the law? About the evidence?

"THE DEFENDANT: If my attorney can't go forward due to an ethical issue, it's-it's his duty to step down, correct? So — "THE COURT: It-that may be correct. I—he did —

"THE DEFENDANT: So—so—

"THE COURT:—he did not elaborate, so I don't know what the ethical —

"THE DEFENDANT: Okay.

"THE COURT:—problem is. But he has indicated that he thinks there is an ethical conflict.

"THE DEFENDANT: Yes, sir.

"THE COURT: And I accept that primarily because you said you wanted to fire him in any—in any event.

"THE DEFENDANT: Yes, sir. But he stepped down because of an issue—issue. Not because of my choice that I didn't think he was adequate. He stepped down [due] to an ethical issue. So that—I should—I should be entitled to another lawyer with a fair trial. With adequate counsel to represent me.

"THE COURT: I—I think that your request is not timely made in the middle of trial, and you are not entitled, in my judgment, to the appointment of a—as I understand it, it would be the fourth court appointed lawyer.

"THE DEFENDANT: Third.

"THE COURT: There were two others—

"THE DEFENDANT: The fourth. Yes, sir.

"THE COURT:—before Mr. Hendershott.

"THE DEFENDANT: Yes, sir.

"THE COURT: So he's number three. You're now asking that a fourth lawyer be appointed.

"THE DEFENDANT: I didn't ask for the other two. One of them had known somebody in the case and had to step down. And I don't know why the other one stepped down.

"THE COURT: Okay. In any event, as far as the Court is concerned, I've ruled."

The trial continued, and the court took testimony for approximately two and one-half hours. The state called five witnesses—the victim, a deputy sheriff who had assisted in the investigation at the scene, the emergency room nurse who had examined the victim, the victim's mother, and the 9-1-1 dispatcher. Defendant cross-examined the victim, the deputy sheriff, and the emergency room nurse. The court then called a recess until the following morning.

The next morning, the court began by asking Hendershott for an affidavit in support of his motion to withdraw and then advised defendant of the consequences of conviction and self-representation. Defendant and Hendershott conferred, and Hendershott told the court that defendant had decided to have Hendershott serve as his counsel, after all. From that point on, Hendershott represented defendant.

The state recalled the victim, whom Hendershott cross-examined. The state then called seven additional witnesses: two other deputy sheriffs who had investigated the scene, taken evidence and interviewed the victim, the hospital physician who had conducted the physical examination of the victim, a sheriff's detective and a deputy sheriff who had collected evidence, and two state forensic scientists. Hendershott cross-examined each witness. On the third day of trial, Hendershott put on defendant's evidence, and the trial concluded. The jury convicted defendant of all charges by a vote of 10 to 2.

II. ANALYSIS

A. Request for substitute counsel

Defendant first challenges several decisions that the trial court made in response to his request for substitute couns...