State v. Lacey

385 P.3d 1151, 282 Or. App. 123, 2016 Ore. App. LEXIS 1386

• Court: Court of Appeals of Oregon
• Decided: November 9, 2016
• Docket: 11CR0121, 12CR0202; A156849 (Control), A156850
• Status: Published

Opinions

LAGESEN, J.

Defendant, who elected to represent himself at his criminal trial, behaved abysmally throughout the course of that trial. The trial court afforded defendant great patience but, shortly before closing argument, after repeatedly informing defendant that his behavior risked his removal from court and the trial proceeding in his absence, the court found defendant in contempt, declared defendant to have forfeited his right to present closing argument and otherwise participate in the proceedings, and ordered defendant removed from the courtroom. The trial continued in defendant’s absence and, because defendant had been self-represented, no one appeared on defendant’s behalf. The jury convicted defendant of most charges, and also found against him as to several sentencing enhancement factors at the subsequent trial on those factors, from which defendant also was excluded.

Defendant has appealed. Relying on our decision in State v. Menefee, 268 Or App 154, 341 P3d 229 (2014), decided after defendant’s trial, defendant argues that the trial court’s continuation of the trial in his absence violated his Sixth Amendment right to representation because the trial court did not take steps to protect defendant’s right to representation, and because defendant did not knowingly and intelligently waive that right. Reviewing for legal error, see generally Menefee, 268 Or App at 183-86 (so reviewing same question), we agree with defendant and reverse.

It is unfortunate that we had not yet decided Menefee at the time of defendant’s trial, because that decision would have assisted the trial court in addressing the complex problems created by defendant’s misconduct. In Menefee, we set forth the procedure that the Sixth Amendment requires a trial court to follow when a self-represented defendant’s misconduct causes the court to remove the defendant from the courtroom. 268 Or App at 185-86. The issue was one of first impression in Oregon and, after reviewing the case law from other state and federal courts to have considered the question, we observed that a situation like that confronted by the trial court here raises “complex constitutional issues,” because it implicates three related but distinct Sixth Amendment rights: (1) the right to be present at trial; (2) the right to self-representation; and (3) the right to representation. Id. at 184-85. Persuaded by the Ninth Circuit’s analysis in United States v. Mack, 362 F3d 597 (9th Cir 2004), we held that a defendant may forfeit the first two of those rights by misconduct, but does not forfeit the third: “although a defendant who acts out at trial may forfeit the right to be present and the right to self-representation in the proceeding, the defendant does not also forfeit the right to any representation at trial.” Menefee, 268 Or App at 184-85.

Consequently, because a criminal defendant does not forfeit the right to representation by misconduct (only the rights to self-representation and to be present), “after a trial court has removed a pro se defendant for his or her misconduct, the trial court cannot proceed in the defendant’s absence unless and until the trial court has either secured the defendant’s waiver of his or her right to representation at trial or has taken some other course of action that protects the defendant’s right to representation, which may include the appointment of counsel.” Id. at 185. Thus, in Menefee, where the trial court continued the trial in the defendant’s absence without appointing counsel or obtaining a waiver of the defendant’s right to representation, we concluded that the defendant’s Sixth Amendment right to representation had been violated and that reversal was required. Id.

As the Ninth Circuit recognized in Mack, one of the primary rationales for this approach is to protect the structural integrity of our criminal justice system. Where a criminal case is tried against a vacant defense table, the adversarial process has broken down, and cannot ensure that the convictions rendered are fair and reliable. Our system strives to be fair, even to those who, like the defendant in Menefee and defendant here, work the hardest to undermine it. And the Sixth Amendment imposes upon us, as courts, an obligation to do what we can to prevent them from succeeding. See Mack, 362 F3d at 603 (“no matter how vexed [a court] becomes with a defendant’s noisome nonsense,” the Sixth Amendment does not permit the court to “eliminate important elements of a trial”). This does not mean that a court has to tolerate an obstreperous defendant’s presence in the courtroom, but it does mean that the court may have to appoint counsel for a defendant who previously elected to proceed pro se, notwithstanding the awkwardness of doing so mid-trial. For this reason, as we observed in Menefee, “it is advisable for a trial court to appoint advisory counsel for a defendant whom the court suspects will be disruptive so that the court can appoint that lawyer as counsel if the defendant can no longer represent himself.” Menefee, 268 Or App at 185 n 13.

In this case, after defendant forfeited his rights to be present and self-representation, the trial court continued the trial in defendant’s absence without complying with the procedure set forth in Menefee. The court did not secure a waiver of defendant’s right to representation, it did not appoint counsel, and it did not take other measures to protect defendant’s right to representation after it removed him from the courtroom. As a result, defendant was deprived both of closing argument and the ability to participate in the trial on the sentencing enhancement factors.

Under Menefee, it appears that the trial court erred, and that the error requires reversal. Menefee, 268 Or App at 186 (trial court’s decision to continue trial without securing waiver of right to representation or otherwise taking steps to protect right to representation required reversal); Mack, 362 F3d at 603 (same). The state and the dissenting opinion, however, advance several arguments as to why that should not be the case. For the following reasons, we are not persuaded.

First, the state argues that defendant did not preserve his claim of error. The state is correct that defendant did not present to the trial court the same constitutional argument that he is presenting to us. However, defendant made clear his desire to present closing argument, objected to being excluded from his trial, and argued that the court was not letting him present his case. In addition, the court and the prosecutor recognized that the court’s removal of defendant implicated his constitutional rights. The prosecutor specifically requested the court to make a finding that defendant had “essentially forfeited his right to remain in the Courtroom for the remainder of the Trial,” and the court found that, as a result of his misconduct, defendant “thereby forfeited the right to make his closing argument and to be present during the rest of the proceedings in this matter or today’s proceedings.” In Menefee, we held that objections like those made by defendant in this case were sufficient to preserve the defendant’s assignment of error, where the record also indicated that the prosecutor and the court were aware that proceeding in the defendant’s absence raised constitutional concerns. 268 Or App at 174. The circumstances in this case are not meaningfully distinguishable. As a result, we conclude that defendant has preserved his assignment of error.

Second, the state and the dissenting opinion argue that Menefee does not govern this case because in this case the trial court warned defendant repeatedly that his misconduct could result in his removal from the courtroom and the case proceeding without him; the state notes that it does not appear that such warnings were given in Menefee. In the dissenting opinion’s view, Menefee does not control this case because in Menefee we did not expressly address whether the procedure described would apply where a defendant had been warned expressly of the risk that the defendant would forfeit the right to representation by misconduct. 282 Or App at 135 (Garrett, J., dissenting). The state’s argument is different. It does not dispute that Menefee required the trial court to obtain a knowing and voluntary waiver of the right to representation but argues that Menefee does not dictate reversal because, under Menefee's framework, the warnings given by the trial court would permit the inference that defendant knowingly and voluntarily waived his right to representation when he engaged in the misconduct that led to his exclusion from the courtroom.

We do not think that the dissenting opinion’s approach can be squared with the interpretation of the Sixth Amendment adopted by Menefee. We stated our holding unequivocally, rejecting the notion that a defendant can forfeit the right to representation by misconduct and explaining, precisely, what trial court must do when excluding a pro se defendant from the courtroom: “[A]fter a trial court has removed a pro se defendant for his or her misconduct, the trial court cannot proceed in the defendant’s absence unless and until the trial court has either secured the defendant’s waiver of his or her right to representation at trial or has taken some other course of action that protects the defendant’s right to representation, which may include the appointment of counsel.” Menefee, 268 Or App at 185. Nothing in that holding suggests that the procedure would not apply if a trial court warned a pro se defendant that the trial could go on in the defendant’s absence if the defendant was excluded for misconduct. Although we could have qualified our holding in that way, we did not.

Moreover, the dissenting opinion’s approach is difficult to square with Mack, the case on which we relied in Menefee to conclude that the Sixth Amendment prohibited a trial court from excluding a pro se defendant from the courtroom and then proceeding in the defendant’s absence without obtaining a knowing and intelligent waiver of the right to representation. In Mack, the pro se defendant had been warned that, “if his shenanigans continued, he would be removed from the courtroom, his questioning of witnesses would cease, and he would not be permitted to present argument to the jury.” 362 F3d at 599. Although those warnings did not state expressly that the trial would continue in the defendant’s absence, that was their fair import. Yet those warnings were immaterial to the Ninth Circuit’s analysis of the core question presented by the situation that arises upon the removal from court of a pro se defendant: whether the Sixth Amendment permits the continuation of trial in the absence of a pro se defendant who has been removed from the courtroom with no one present to represent the defendant. As noted, the Ninth Circuit concluded that the Sixth Amendment does not permit such a process, and we adopted the Ninth Circuit’s interpretation in Menefee. The dissenting opinion correctly observes there are other approaches that we could have adopted, but the state does not argue that Menefee is wrongly decided. We acknowledge that reasonable jurists can disagree as to what the Sixth Amendment requires when a pro se defendant is removed from a courtroom for misconduct, but we decline to retreat from our decision in Menefee to adopt Mack's view of the Sixth Amendment.¹

As to the state’s point—that the warnings permit the conclusion that defendant knowingly and intelligently waived the right to representation recognized in Menefee— for us to conclude that defendant knowingly and intelligently waived his right to representation after he forfeited his rights to self-representation and to be present in court, we would have to be able to conclude that defendant knew that he retained the right to representation, notwithstanding his forfeiture of the other two rights. See State v. Guerrero, 277 Or App 837, 845, 373 P3d 1127 (2016) (explaining that, for waiver of right to be intelligent, a defendant must have knowledge and understanding of that right). But nothing in the trial court’s warnings would have made defendant aware of the fact that he would retain the right to representation if he were excluded from the courtroom for misconduct, such that he would be entitled to appointment of counsel for the duration of the proceeding if he wanted representation.² The trial court’s warnings merely told him that the trial would proceed without him if he was held in contempt, without alerting him of his ongoing right to representation in those circumstances. That omission precludes us from concluding that the trial court’s warnings to defendant in this case could supply a basis for concluding that defendant knowingly and intelligently waived the right to representation identified in Menefee.

Finally, the state argues that, even if the trial court erred under Menefee, that error does not require reversal or, at most, requires reversal of defendant’s sentences but not his convictions. The state argues that defendant was deprived only of the opportunity to participate in closing argument and in the trial on the sentencing enhancement factors, and that there is no basis to think that the outcome of the proceedings would have been different if defendant had been represented at those stages of the case.

We again disagree. Under Menefee and Mack, the trial court’s decision to continue the trial in defendant’s absence without obtaining a waiver of his right to representation, appointing counsel, or otherwise taking steps to protect that right, violated defendant’s rights under the Sixth and Fourteenth Amendments. Under Mack, that type of Sixth Amendment error constitutes structural error and mandates reversal. 362 F3d at 602-03 (concluding that district court committed structural error where “as an aspect of termination of his self-representation, [the defendant was] denied the right to conduct any closing argument at all”). Although we did not address the point of harmless error expressly in Menefee, we concluded that reversal was required based on the trial court’s failure to appoint counsel or to obtain a knowing and intelligent waiver of the right to representation, consistent with Mack’s conclusion that such an error mandates reversal. Menefee, 268 Or App at 185-86. We adhere to that approach here.

Reversed and remanded.

1 Given that state and federal courts across the country are fractured on this complex issue, we echo the sentiments of the Second Circuit: “Frankly, more guidance from the Supreme Court would he helpful.” Davis v. Grant, 532 F3d 132, 140 (2d Cir 2008), cert den, 555 US 1176 (2009). In Davis, on federal habeas review of a state court decision under 28 USC § 2254, the Second Circuit held that a New York state court’s determination that a pro se criminal defendant’s Sixth Amendment rights were not violated when that defendant was removed from the courtroom for misconduct without the appointment of standby counsel was not contrary to clearly established Supreme Court precedent. 532 F3d at 145. However, the court noted that, if it had been deciding the issue for itself in the first instance, “we might conclude that [the state trial court] erred when [it] failed to appoint [counsel] to represent [the pro se defendant] during his well-earned absence from the courtroom.” Id.

2 The district court’s warnings to the self-represented defendant in United States v. Bundy, No 3:16-cr-00051-BR-5 (D Or 2016), and the process that it employed to address the defendant’s misconduct, illustrate the type of warnings and process contemplated by Mack. In response to misconduct by the defendant in that case, the court repeatedly warned the defendant that, as allowed by Faretta v. California, 422 US 806, 834 n 46, 95 S Ct 2525, 45 L Ed 2d 562 (1975), and as contemplated by Mack, the court would terminate his right to self-representation and re-appoint his previously appointed counsel to represent him. Minute Order, United States v. Bundy, No 3:16-cr-00051-BR-5 (D Or Jul 29, 2016), ECP 955 (citing Faretta); Order to Show Cause as to Defendant Ryan Bundy, United States v. Bundy, No 3:16-cr-00051-BR-5 (D Or Aug 24, 2016), ECP 1101 (citing Faretta and Mack). When the court concluded that the defendant’s misconduct risked prejudice to the “fair administration of justice,” it directed the defendant to show cause why the court should not declare his right to self-representation forfeited, and re-appoint counsel. Order to Show Cause as to Defendant Ryan Bundy, United States v. Bundy, No 3:16-cr-00051-BR-5 (D Or Aug 24, 2016), ECF 1101. By alerting the defendant that the consequence of his misbehavior would be the forfeiture of the right to self-representation and the appointment of counsel, the court’s warnings informed the defendant that he had retained the right to representation even upon forfeiture of the right to self-representation. Such warnings laid the groundwork for the knowing and intelligent waiver of the right to representation that exists upon the forfeiture of the right to self-representation although, ultimately, the court in the Bundy case decided not to declare a forfeiture of the right to self-representation.