State v. Smith

• Decision Date: 18 November 2005
• Docket Number: C991426CR; CA A110289; SC S51233.
• Citation: 123 P.3d 261,339 Or. 515
• Parties: STATE of Oregon, Respondent on Review, v. Rocky Devon SMITH, Petitioner on Review.
• Court: Oregon Supreme Court

123 P.3d 261

339 Or. 515

STATE of Oregon, Respondent on Review, v. Rocky Devon SMITH, Petitioner on Review.

C991426CR; CA A110289; SC S51233.

Supreme Court of Oregon.

Argued and Submitted November 8, 2004.

Decided November 18, 2005.

Appeal from the Circuit Court of Washington County, Mark Gardner, J.

On review from the Court of Appeals.^*

Eric M. Cumfer, Senior Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With him on the brief were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Office of Public Defense Services.

Robert M. Atkinson, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before CARSON, Chief Justice, and GILLETTE, DURHAM, RIGGS, DE MUNIZ, and BALMER, Justices.^**

BALMER, J.

This criminal case requires us to examine the scope of a trial court's obligation when a defendant requests that the court appoint new counsel because the defendant is dissatisfied with his existing appointed counsel. Here, defendant told the court on the day of trial that he was dissatisfied with his appointed counsel and counsel's preparation of defendant's case. The trial court listened to defendant's complaints, but it did not inquire into the basis of the complaints or hold a hearing regarding defendant's assertions. The court, however, expressed its confidence that defendant's appointed counsel was competent and was prepared for trial. The case proceeded to trial, and defendant was convicted.

On appeal, the Court of Appeals concluded that the trial court had erred in not inquiring into defendant's complaints, reversed defendant's convictions, and remanded for a new trial. State v. Smith, 187 Or.App. 562, 69 P.3d 787 (2003) (Smith I). On reconsideration, however, the Court of Appeals withdrew its disposition of the case, vacated defendant's convictions, and remanded for a new hearing on defendant's pretrial complaints regarding his counsel and a determination of whether the trial court's error was harmless. State v. Smith, 190 Or.App. 576, 80 P.3d 145 (2003) (Smith II). Defendant petitioned for review, arguing that the Court of Appeals' initial disposition was correct and that he was entitled to a new trial. We allowed the petition. Because we conclude that the trial court did not err, we reverse the decision of the Court of Appeals.

I. PROCEEDINGS BELOW

The state charged defendant with robbery, assault, and related firearms offenses. On the day of trial, defendant requested that the trial court appoint substitute counsel because, defendant asserted, he lacked confidence in his counsel and his counsel had failed to investigate his case adequately. The comments of defense counsel and defendant, and the trial court's response, are set out in the transcript:

"[DEFENSE COUNSEL]: * * * Mr. Smith is present and, as I indicated to the court in chambers this morning, Mr. Smith has indicated to me that he is concerned about my representation of him and he has asked me to indicate to the court that he would like new counsel assigned to the case.

"One, apparently, it's his belief I'm not prepared and ready to go in this case. And, number two, he, apparently, had some problems with the way I've been handling it with him over the past few days.

"With that said, I guess I would let my client indicate to the court what his concerns are and have the court address that with him.

"THE COURT: Mr. Smith, this is your opportunity to address the court.

"THE DEFENDANT: For several months, I've been working with [former counsel], I don't know if he was just on retainer with [defense counsel], but I was not too confident, either, with his ability, but I trusted the fact that he was looking out for my best interests rather than the quickest way to end the case.

"I mean no personal disrespect against [defense counsel], but I just don't feel that I will be getting a fair representation with someone that would rather just see the case done and over with rather than hear the truth or have the truth even be brought out.

"I have witnesses and other facts and none of them have even been questioned. Or, I just don't — none of my witnesses have been talked to except for one, and she was asked a few questions of does she know what happened? Does she know what came in? And this was told to me by my previous lawyer * * * and that was it. None of the other ones that I have given to the law firm have been spoken to. I don't feel that I'm being fairly represented by staying with [defense counsel].

"THE COURT: Well, let me comment on a couple things. First of all, I've been doing this job now, this is my 18th year, so I've been a judge for a while and I've seen a lot of attorneys come through the court system. I can tell you that were I charged with a crime, there are probably about 10 attorneys that I would personally consider representing me, out of the 10,000 that are practicing law here in the State of Oregon. [Defense counsel] is on that list. He's a very good attorney. He's probably a better attorney than [former counsel] is, and if [defense counsel] tells me that he's ready to go to trial in this matter and represent your interests, I have to believe him.

"Now, this is a serious matter, extremely serious matter for you and the court is entirely aware of that. We believe that if there was any kind of prejudice, substantial prejudice to you in proceeding ahead at this point in time with [defense counsel] representing you, I wouldn't hesitate over the State's objection to continue the matter.

"On the other hand, I'm not going to continue it because at some point in time, we have to resolve this matter and we have lots of other cases and lots of other people that are trying to get their day in court.

"Based upon what I've heard at this particular point in time, I'm not prepared to continue the trial. So we will be proceeding today."

The trial court denied defendant's request.

Defense counsel then noted for the record that the prosecutor had just given him a summary of the testimony of a codefendant who had entered into a plea agreement. Defense counsel, however, told the trial court that he was "not indicating to the court that that affec[ted][his] ability to be prepared for trial," that he had anticipated what the witnesses on the witness list had to say, and that he had copies of their prior statements. The trial court then recessed the proceedings for 15 minutes to allow defendant and his counsel to discuss whether to enter a plea or to go to trial. Defendant chose to proceed to trial, and a jury convicted him of the charged offenses.

Defendant appealed, arguing that the trial court had erred (1) by failing to inquire into defendant's claims regarding the adequacy of his counsel; and (2) by failing to appoint substitute counsel. Defendant argued that, because of those errors, the Court of Appeals should reverse his conviction and grant him a new trial.

The state responded that the trial court had listened to and evaluated defendant's complaints but that it ultimately had rejected them because defendant had offered no legitimate basis for removing his court-appointed counsel. The state further argued that, if the trial court in fact had erred in not making the required inquiry, the appropriate disposition was for the Court of Appeals to remand the case to the trial court to determine whether defendant's complaints were legitimate and whether the trial court should have appointed substitute counsel to represent him. Responding to defendant's second assignment of error, the state argued that the trial court had not abused its discretion in denying defendant's motion for substitute counsel.

A panel of the Court of Appeals held that the trial court had erred by failing to inquire into defendant's complaints concerning his appointed counsel. Smith I, 187 Or.App. at 564, 69 P.3d 787. Based on that perceived error, the court reversed the trial court's judgment and remanded the case for a new trial. Id.

The state petitioned for reconsideration, again arguing that, even if the trial court had erred, the proper remedy was not a new trial but, rather, a remand to the trial court so that it could conduct the required inquiry, decide whether it should have appointed substitute counsel and, if it answered that question affirmatively, order a new trial. Specifically, the state contended that, under Article VII (Amended), section 3, of the Oregon Constitution, the Court of Appeals lacked authority to reverse the trial court judgment because, even if defendant had demonstrated legal error in the trial court's failure to inquire into defendant's complaints, he had not established that he had been prejudiced by that error.

In an en banc decision, the Court of Appeals granted reconsideration, withdrew its earlier disposition, and remanded to the trial court to conduct a hearing on defendant's complaints about his counsel and to determine whether defendant's counsel had been adequate. The court first stated that, as the state had contended, Article VII (Amended), section 3, of the Oregon Constitution¹ requires the court to affirm the trial court judgment, despite any error at trial, if the judgment "was such as should have been rendered in the case." Smith II, 190 Or.App. at 578-79, 80 P.3d 145 (quoting State v. Davis, 336 Or. 19, 25, 77 P.3d 1111 (2003) (quoting Article VII (Amended), section 3)). The court then explained that, because "the trial court had an affirmative duty to inquire" into defendant's request for a new attorney but had failed to make that inquiry, the Court of Appeals did not have an adequate record on which to affirm the trial court's judgment. 190 Or.App. at 580, 80 P.3d 145. It therefore remanded the case to the trial court to conduct the inquiry that it had not conducted at trial. As noted, we allowed defend...