State v. Ames

445 P.3d 928, 298 Or. App. 227
CourtCourt of Appeals of Oregon
DecidedJune 19, 2019
DocketA164966
StatusPublished
Cited by4 cases

This text of 445 P.3d 928 (State v. Ames) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Ames, 445 P.3d 928, 298 Or. App. 227 (Or. Ct. App. 2019).

Opinion

SHORR, J.

*930*229Defendant appeals from a judgment of conviction for three counts of second-degree burglary, two counts of first-degree theft, and one count of second-degree criminal mischief, assigning error to the trial court's denial of his request to waive a jury trial.1 For the reasons explained below, we reverse and remand.

The underlying facts are undisputed. Defendant was arrested and arraigned on charges of burglary, theft, and criminal mischief. Defendant was then conditionally released from custody. After he failed to appear at a subsequent hearing in this case, defendant was arrested on new charges. Defendant then personally appeared before the trial court in this case on March 17, 2017. During a plea hearing that occurred a few days later, defendant requested a jury trial. Trial was scheduled for May 2, 2017, with a trial readiness hearing scheduled for the preceding day. When defendant failed to appear at the trial readiness hearing on May 1, the court cancelled the jury trial. Later in the day on May 1, defendant was arrested on different charges, and the jury trial was reinstated for the following day.

On the scheduled day of trial, May 2, during discussion of pretrial matters with the court and before the jury was empaneled, defendant's counsel requested to waive defendant's right to a jury and asked that the case be tried to the court. Defendant was in custody and not present in the courtroom for that discussion. The prosecutor expressly took no position on defendant's request to waive a jury trial. The trial court denied defendant's request, explaining that it was doing so for three reasons. First, the trial court expressed concern about the "timing" of the request, coming on the morning of trial. Second, the court expressed an economic concern for the court having already incurred the cost for the jurors, stating that it would be "no more *230economical" to cancel the jury at such a late hour. Third, the court expressed a belief that the jury would be able to fully protect defendant's rights, noting that, unlike the court, the jury was not aware of defendant's custody status and his prior criminal record. To these points, the trial court stated as follows:

"I'm aware of the cases that have come out the last couple years. And it is a discretionary call by the Court.
"I'm not going to allow the waiver of the jury trial. He apparently was here for the change of plea [hearing], he requested a jury trial. We've got jurors who are here, waiting. In fact, I brought in quite a number of jurors here in this case.
"The timing is a concern on my part-the waiver on the-on the morning when I have the jury already here. If I would have known about it last night, I could have at least called the jury off.
"The other thing that I factor in is this. I actually have done a little work on this case in terms of looking at the proceeding sheet, looking at the charging instrument. I know that he's in custody. I mean, I know all those things that a jury wouldn't know. A jury is not going to know that he's in custody.
"I know a little bit about his background. I guess I'm hearing now that he's got warrants outstanding, or-
"* * * * *
"*** all of this is just a concern that I, as a neutral factfinder, I'm not so sure I-you *931know, I've got that information in my head."

After a recess, defendant was then brought into the courtroom, and the trial court again explained why it had decided to deny defendant's request to waive a jury trial. The court explained to defendant as follows:

"[T]here's some cases that [came] out in the last year or two from the Supreme Court which identifies some factors that I'm to consider. The * * * case, as I recall, is State v. Harrell . And one of the reasons that I'm not allowing a jury waiver is the timing of the waiver.
*231"My notes show that you and [defense counsel] were in front of the court back in March of 2017. You requested a jury trial at that time. We actually brought the jury-we notified the juries last night-jurors last night to show up today. And I've got quite a number of citizens that are in the back room waiting to serve as a jury.
"And I wasn't aware that you wanted to waive a jury until about 45 minutes before 9:30. So, the timing of the waiver is a concern. If the waiver had occurred earlier, the court might well have considered and approved a waiver. So, that's one factor that I considered is that the timing of the waiver comes way too late.
"The other factor is, the state [does] not express-does not take a position here. That's a factor I can consider.
"The other factor that I was thinking about is it's certainly no more economical in this particular case, to waive a jury. The jury is here. They're going to get paid for being here today. We will still have to pay them for being here today, even if they don't do the trial.
"So, we don't-it's no more economical to waive a jury in terms of money outstanding paid to a jury.
"And more importantly, I'm convinced that a jury would fully protect your rights. They're not going to know anything about the fact that you're in custody. They're not going to know that. They're not going to know anything about the fact that you've got outstanding warrants; or, according to [defense counsel], maybe a bit on the lam or on the run for a while. They're not going to know about that.
"They're just going to know you're sitting there as a human being, dressed appropriately. And they just aren't going to know about that. So, I think that weighs in favor of the defendant, as opposed to what a judge might know about this case.
"So, for those reasons, I'm not going to allow waiver of jury."

Defendant's case was then tried to a jury. The jury found defendant guilty on all counts, and the trial court entered a judgment of conviction. Defendant now appeals that judgment, assigning error to the court's denial of his request to waive a jury trial. Defendant contends that the court abused *232its discretion in denying the waiver because the court misapplied the relevant factors in reaching its decision.

Before reaching the merits of defendant's assignment of error, we address the state's contention that the error is unpreserved. The state asserts that the preservation doctrine prevents us from considering defendant's appeal because defendant did not object or make any further legal argument after the trial court denied his request to waive the jury. More specifically, the state contends that defendant did not alert the court that it had erred in weighing the relevant factors to be considered when determining whether defendant could waive his right to a jury trial.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Gilliland
347 Or. App. 256 (Court of Appeals of Oregon, 2026)
State v. Murphy
549 P.3d 15 (Court of Appeals of Oregon, 2024)
State v. Hernandez
481 P.3d 959 (Court of Appeals of Oregon, 2021)
State v. Arnold
462 P.3d 753 (Court of Appeals of Oregon, 2020)
State v. Merritt
454 P.3d 844 (Court of Appeals of Oregon, 2019)

Cite This Page — Counsel Stack

Bluebook (online)
445 P.3d 928, 298 Or. App. 227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ames-orctapp-2019.