State v. Hussin
This text of 752 P.2d 337 (State v. Hussin) 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.
Opinion
Defendant appeals a conviction of conspiracy to commit theft in the first degree. ORS 161.450. The court appointed counsel on August 25, 1986. ORS 135.045; ORS 135.050. The record discloses that, after pre-trial disclosure by both parties, appointed counsel certified that discussions had occurred between the trial attorneys, that defendant had been advised of a final plea bargain offer, that counsel had filed a motion to suppress evidence and requested a jury trial and that the case was ready for trial. On October 9,1986, at defendant’s request, the court substituted a second counsel, who represented defendant for about five weeks before the court terminated the appointment. Defendant assigns as errors that the court denied his pre-trial motion to substitute a third appointed counsel and that, at the time of trial, it again denied his motion to appoint a third counsel. He asserts his right to the assistance of counsel under Article I, section 11 of the Oregon Constitution and the Sixth Amendment. We affirm.
Defendant was dissatisfied with both of his appointed counsel because, as defendant told the court on November 17, 1986, they “don’t have any knowledge of the Masonic Order, of the Masonic Body. They don’t have any knowledge of degree within the Body.” He continued:
“DEFENDANT: I’d like to ask you a question. Have you kissed the Blarney Stone? Are you prepared to even support your hand and take the trial—
“COURT: Look, do you want a lawyer or don’t you want a lawyer?
“DEFENDANT: Yes, I want a lawyer. This lawyer here tells me he has no knowledge of the Mas—
“COURT: What has that got to do with the charge you are sentenced for?
“DEFENDANT: I’m trying to tell you. He doesn’t even know the working and all of the Masonic. If he don’t know that, how can he intend — if he’s going to represent me, he doesn’t have any biblical knowledge.
“COURT: Look, you get Mr. * * * or you represent yourself. Your choice. Make it now.
“DEFENDANT: Would you like to answer my questions?
“COURT: Make the choice now.
[362]*362“DEFENDANT: Have you kissed the Blarney Stone?
“COURT: Mr. * * *, you are relieved. You are representing yourself.”
Defendant did not give reasons sufficient to show that his second counsel was “unsuitable,” see ORS 135.050(1), or that ORS 135.050(5)1 or either constitution required the court to appoint substitute counsel. There is no basis in the record to question the competency of either appointed counsel. Defendant has not shown that, whether either of his appointed counsel was a Mason, or had knowledge of the “Masonic Order” or “Masonic Body,” was material to his competency or “suitability” to represent defendant in this case. See State v. Pagan, 80 Or App 65, 68, 721 P2d 859 (1985), rev den 301 Or 766 (1986); State v. Barnett, 41 Or App 797, 598 P2d 1301, rev den 287 Or 641 (1979). Although defendant wanted appointed counsel, he placed conditions on the court’s selection which it was not required to accept.
Under the circumstances, the court did not err when it did not inquire more fully whether defendant knowingly, voluntarily and intelligently waived his right to counsel’s assistance. Indeed, the question is not whether the court should have inquired further whether defendant knowingly, voluntarily and intelligently decided that he did not want counsel. Defendant stated expressly that he did want counsel. Apparently, he understood the importance of counsel’s assistance. He had persisted for over a month in rejecting the attorneys that the court had appointed and on wholly insufficient grounds. The court informed defendant that his ground for objection to appointed counsel was insufficient and that he must choose between that counsel and representing himself. Yet defendant persisted. The court was entitled to conclude that further inquiry was pointless.
The court was entitled to limit defendant’s choices to proceed with the counsel already appointed or to represent himself. Neither the “interests of justice,” ORS 135.050(5), Article I, section 11, nor the Sixth Amendment required, on this record, that the court give defendant a third choice of [363]*363another appointed counsel. Moreover, the court was entitled to conclude that defendant’s choice, among his available options, was to represent himself.
A different judge did not err when he denied defendant’s motion for a third appointed counsel just before the trial began in January, 1987. See State v. Pagan, supra, 80 Or App at 70; State v. Barnett, supra, 41 Or App at 803. He considered the motion and the reason why defendant had already rejected two appointed counsel. By that time, defendant had persisted for at least three months in placing the same inappropriate conditions on the court’s selection of counsel. In response to defendant’s statement that he needed counsel, that he was “not adequately equipped” to represent himself and that he was “seeking counsel,” the court told him expressly that “the state does not have any obligation to seek and find a lawyer susceptible to your wishes.” Yet defendant again refused to change his position.2 The court could [364]*364conclude that defendant knowingly, voluntarily and intelligently continued to place unacceptable conditions with respect to the court’s selection of counsel. The court made an independent determination that defendant had chosen to proceed on his own and that it would accept that choice and not delay the trial. It was entitled to make that determination.3
Affirmed.
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Cite This Page — Counsel Stack
752 P.2d 337, 90 Or. App. 359, 1988 Ore. App. LEXIS 272, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hussin-orctapp-1988.