State v. Reid, 24561

• Decision Date: 02 October 1978
• Docket Number: No. 24561,No. 10229,24561,10229
• Citation: 585 P.2d 411,36 Or.App. 417
• Parties: STATE of Oregon, Respondent, v. William James REID, Appellant. ; CA
• Court: Oregon Court of Appeals

Page 411

585 P.2d 411

36 Or.App. 417

STATE of Oregon, Respondent, v. William James REID, Appellant.

No. 24561; CA No. 10229.

Court of Appeals of Oregon.

Argued and Submitted July 18, 1978.

Decided Oct. 2, 1978.

Thomas J. Crabtree, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Kathleen A. Dodds, Certified Law Student, Eugene, argued the cause for respondent. With her on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.

Before SCHWAB, C. J., and LEE, RICHARDSON and JOSEPH, JJ.

RICHARDSON, Judge.

Defendant appeals his conviction following a jury trial for Burglary in the First Degree, ORS 164.225. Defendant makes four assignments of error: (1) that he was denied the assistance of counsel of his own choosing; (2) that it was error to admit testimony of the arresting officer that defendant refused to make a statement after being advised of his rights; (3) that the court erred in denying his requested continuance; and (4) there was insufficient evidence to sustain a conviction for first degree burglary.

The relevant facts necessary to discuss the issues raised by defendant are that about 11:30 p. m. on the day the crime was committed, four witnesses heard the sound of breaking glass. They looked across the street from their vantage point and saw defendant reaching through the broken window of a jewelry store and removing items from the merchandise display. He left the scene and went to a nearby tavern where he was apprehended by the police approximately five minutes later in possession of numerous items taken from the jewelry store. Pieces of broken beer bottle were found inside the jewelry store window and it was inferable the beer bottle had been used to break the window.

Following a preliminary hearing in the district court, defendant was charged, by information, with the crime of Burglary in the First Degree. The information alleged that in effecting the entry in the jewelry store defendant "was armed with a burglar's tool, to-wit: a beer bottle."

The district court appointed the public defender to represent the defendant, who was indigent. The defendant rejected the assistance of the public defender and conducted his own defense during the preliminary hearing. During arraignment in the circuit court, the public defender was again appointed. The defendant again rejected the public defender, stating he wanted another attorney appointed because the public defender represented all criminal defendants and would not have the time to devote to his case. The court told defendant the public defender would be available to assist him, but no other attorney would be appointed. Defendant then decided to represent himself. The public defender sat with defendant during trial, but defendant refused to consult with him. The defendant entered oral pleas of not guilty and not guilty by reason of mental disease or defect.

During trial the arresting officer was allowed to testify, over objection, that after defendant was advised of his constitutional rights, he stated he would not talk to the officer because anything he said would be used against him. The court explained, in ruling on the objection, the evidence was relevant to rebut the defense of mental disease or defect.

Sometime prior to trial the state gave the police reports and witnesses' statements to the public defender. These statements and reports were given to the defendant by the public defender after the jury was empanelled and just prior to opening statements. Defendant requested additional time to prepare his case, stating he had not previously seen the material handed to him. The court recessed for a short period of time to allow defendant to read the reports. Following the recess, defendant continued to protest that he had insufficient time to prepare, but told the court he had read the reports and was ready to proceed. The state made its opening statement before the luncheon recess and the court told defendant he would have additional time during the lunch recess to complete his review of the reports.

The court discussed the proposed jury instructions, including a definition of burglar's tools, at some length with the prosecutor and the defendant. Defendant made no objection to the instructions or the evidence respecting the alleged burglar's tool and did not move for dismissal of the Burglary in the First Degree charge. The issue regarding the sufficiency of the evidence to sustain the verdict is raised for the first time on appeal.

Defendant's first claim of error is that he was denied assistance of counsel of his own choice. An indigent defendant has no constitutional right to a particular attorney. Due process of law is satisfied if he has the assistance of competent counsel. He may waive the proffered counsel and elect to represent himself. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Having rejected able counsel and chosen to represent himself he cannot claim ineffective representation. ORS 135.050(4) provides the court May substitute one appointed counsel for another "when the interests of justice require such substitution." In the posture of this case, the interests of justice did not require appointment of another attorney. See State v. Glover, 33 Or.App. 553, 577 P.2d 91 (1978).

The defendant next asserts it was error to allow the officer to testify respecting defendant's response after he was advised of his constitutional rights. It is argued, such evidence is a comment on the exercise of his constitutional right to remain silent, contrary to Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).

In approaching the issue of the admissibility of such evidence, the first inquiry is whether it is relevant. If relevance is established, the next question is whether there are impermissible inferences which can be drawn from the evidence which, when weighed against the probative value inherent in relevancy, requires its exclusion.

When faced with a defense based on mental disease or defect, the state may present evidence of defendant's mental or emotional condition at or near the time the crime was committed, even though the evidence may be otherwise inadmissible. See State v. Smallwood, 277 Or. 503, 561 P.2d 600 (1977); State v. Olds, 35 Or.App. 305, 581 P.2d 118 (1978); State v. Goss, 33 Or.App. 507, 577 P.2d 78 (1978).

In the case at issue, although the defense of mental disease or defect was raised by the defendant's plea and submitted by the court's instructions, there was little evidence presented to sustain or rebut the defense. No experts testified and the defendant presented no evidence. However, in the unusual circumstances of this case, we conclude the probative value of the evidence outweighed any prejudice to defendant. The jury had an opportunity to observe defendant's mental condition during the trial as he conducted his own defense. The state was entitled to rebut any inferences the jury would draw respecting his mental condition by presenting evidence he acted rationally within a few minutes after the crime was committed.

The challenged evidence was presented by the state's first witness at a time when the state would be unaware what it had to rebut. In closing argument the state asked the jury to infer from this evidence the defendant was acting normally and rationally at the time he was arrested. The state did not argue any other inference could be drawn.

Even if we assume the jury could draw an improper inference from this evidence sufficient to outweigh the probative value respecting his mental condition, reversal is not required. The evidence of defendant's guilt was substantial. Three eyewitnesses identified defendant as the person they saw removing merchandise from the broken jewelry store window. They pointed out the defendant to the police minutes later as he sat in a nearby tavern. He was apprehended immediately and was in possession of numerous items taken from the jewelry store. It was very unlikely the jury's verdict was affected by the potential improper inference that could be drawn from the evidence. Improper admission of this evidence would be an error of constitutional magnitude; but we conclude if it was error it was harmless beyond a reasonable doubt.

The next claim of error is an assertion the court should have granted defendant a continuance to prepare his defense. This argument is based on the fact the defendant was not personally given the discoverable items by the state until after the jury had been empanelled. He asserts the limited opportunity to review the material deprived him of an adequate opportunity to prepare his case.

The argument has two facets: first, whether there was adequate disclosure under ORS 135.873; and secondly, whether the court abused its discretion in denying a continuation of the trial.

Although defendant was given the materials on the day of trial, they had been earlier given to the attorney appointed to assist him. This attorney was under orders of the court to assist defendant even though defendant elected to represent himself. The state could reasonably assume the material would be presented to defendant by his appointed counsel.

The court, however, was faced with the unusual situation where the defendant rejected any help from his appointed counsel and proceeded on his own. In response to this situation, the court did not abuse its discretion in allowing a recess and denying a continuance. The reports and witnesses' statements were described as "short" and brief. Defendant had an adequate opportunity to review the statements and utilized them during his cross-examination of the witnesses. The defendant has demonstrated no substantial prejudice by the late receipt of the statements or denial of a continuance.

The final assignment of error urged by defendant concerns the sufficiency of the...