State v. Martineau

                                       784

  Argued and submitted June 20, reversed and remanded November 27, 2019


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                 DALE WILLIAM MARTINEAU,
                      Defendant-Appellant.
                 Washington County Circuit Court
                      16CR60377; A165409
                                  

     Defendant appeals from a judgment of conviction for robbery in the second
degree, menacing, theft in the second degree, and unauthorized use of a vehicle. Defendant assigns error to the trial court’s denial of his midtrial request to
represent himself, arguing that the trial court did not weigh the relevant considerations as required by Article I, section 11, of the Oregon Constitution. The
state concedes the error. The primary dispute in this case concerns the proper
disposition. Defendant argues that remand for a new trial is appropriate, while
the state argues that the Court of Appeals should remand to the trial court for
the limited purpose of engaging in the proper analysis under Article I, section
11. Held: The Court of Appeals accepts the state’s concession. The court adheres
to its holding in State v. Nyquist, 

, 

 (2018), in
which the court concluded that, when a trial court errs in denying a defendant’s
midtrial invocation of his Article I, section 11, right to self-representation, the
proper remedy is to reverse and remand for a new trial.
    Reversed and remanded.



   Beth L. Roberts, Judge.
   Daniel C. Bennett, Deputy Public Defender, argued the
cause for appellant. Also on the opening brief and a supplemental brief was Ernest G. Lannet, Chief Defender, Criminal
Appellate Section, Office of Public Defense Services. Dale
William Martineau filed a supplemental brief pro se.
   Lauren P. Robertson, Assistant Attorney General, argued
the cause for respondent. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
   Before Armstrong, Presiding Judge, and Tookey, Judge, and
Shorr, Judge.
   SHORR, J.
   Reversed and remanded.
Cite as 

 (2019)                                               785

           SHORR, J.
         Defendant appeals from a judgment of conviction for
robbery in the second degree, menacing, theft in the second
degree, and unauthorized use of a vehicle. Defendant assigns
error to the trial court’s denial of his midtrial request to represent himself.1 For the reasons set forth below, we reverse
and remand.
         The relevant facts are undisputed and procedural
in nature. Defendant was charged with seven counts of robbery, menacing, theft, unlawful use of a vehicle, and criminal mischief based on allegations that defendant drove
away with an acquaintance’s truck and, brandishing a
gun, demanded money from the cash register at two different Fred Meyer locations. Defendant’s case proceeded to a
jury trial. Toward the end of the first day of trial, defendant
asked the trial court if he could say something in the presence of the jury. The court told defendant no, and defendant
attempted to speak again. The court interrupted defendant
and instructed him, “Do not say anything.” Once the jury
left the courtroom, defendant explained that he wanted a
new attorney because he was frustrated with his attorney,
Taylor, refusing to cross-examine witnesses. The court told
defendant that it would address defendant’s concerns the
next morning.
         The following morning, defendant requested to terminate his counsel and represent himself. Defendant explained
that he was “frustrated” with his attorney’s failure to call
witnesses. The trial court first informed defendant that, if
he had another outburst in front of the jury, the court would
hold defendant in contempt and have him removed from the
proceedings. Then the court denied defendant’s request. The
court explained:
       “I also want to tell you that I’m not going to remove
    Mr. Taylor from your—as your counsel. And I want you
    to know that Mr. Taylor’s a very, very good attorney; that

    1
       Defendant also filed a supplemental brief in which he assigns error to the
trial court’s instruction to the jury that it could return a nonunanimous verdict.
Because we reverse and remand for a new trial, we do not need to reach this
issue.
786                                                   State v. Martineau

   he has done hundreds and hundreds of cases. And one of
   the hardest things for clients to understand is that lawyers have to make decisions about what they’re doing.
   And another hard thing for lawyers to do is to not ask
   questions. But it’s a really smart attorney that doesn’t
   ask questions. In this particular case Mr. Taylor knows
   the evidence that’s going to be presented and Ms. Martin
   knows the evidence that’s going to be presented. And when
   he makes a choice not to ask questions of a witness, that’s
   because he doesn’t want the—the evidence to come out a
   second time.”
Afterward, the jury was brought in, and the trial resumed.
         Later that day, the trial court returned to the topic
of defendant’s request to represent himself. The court asked
whether defendant was “still willing” to be represented by
his attorney.
      “DEFENDANT: Yeah. Well, I mean, I really don’t
   have no choice, right?
      “THE COURT: All right. All right. So we’re going to
   go ahead and continue with [your attorney] representing
   you.”
The trial resumed. Defendant was convicted on six counts
and acquitted on one.
         Defendant assigns error to the trial court’s denial
of his request to represent himself, arguing that the court
failed to weigh, on the record, the relevant competing interests when denying his request. The state concedes the error,
and we accept that concession.
         A defendant’s right to self-representation is found
within Article I, section 11, of the Oregon Constitution.2
When that right is invoked in the middle of a trial, however,
it is not unqualified. State v. Hightower, 

,

 (2017). “In particular, once a trial has begun,
a number of interests other than the defendant’s Article I,
section 11, rights come into play.” 

. The trial court
has discretion to deny a defendant’s midtrial request to
waive counsel “if it has reason to conclude that granting the
   2
     “In all criminal prosecutions, the accused shall have the right … to be
heard by himself and counsel[.]” Or Const, Art I, § 11.
Cite as 

 (2019)                             787

motion would result in disruption of the proceedings.” Id. at
418. The court must weigh the relevant competing interests
on the record. Id. at 421. Those interests include a consideration of defendant’s right to self-representation following
a knowing and voluntary waiver and the court’s “overriding obligation to ensure the fairness and integrity of the
trial and its inherent authority to conduct proceedings in
an orderly and expeditious manner.” Id. at 417-18. Here, the
court explained only that it was denying defendant’s request
and that, in the court’s view, defendant had a “very, very
good attorney.” The court did not weigh any relevant considerations on the record. Accordingly, we accept the state’s
concession that the trial court erred.

         The primary dispute in this case is the proper disposition. Defendant argues that remand for a new trial is
appropriate. The state argues that we should remand to
the trial court for the limited purpose of engaging in the
proper weighing of interests. The state argues that, if the
trial court’s conclusion after conducting such analysis is
that the court would have denied defendant’s request to
represent himself, the court should reinstate defendant’s
conviction.

         At the outset, we rejected—and the state acknowledges that we rejected—the same argument in State v.
Nyquist, 

, 

 (2018). In that
case, the state had argued that, if we concluded that the
trial court erred in denying the defendant’s midtrial request
to represent himself, “the trial court should have the ability to consider defendant’s request for self-representation, to
conduct proper balancing on the record, and to determine
whether a new trial should be granted in light of its decision.” 

 (internal quotation marks omitted). In rejecting
that argument, we explained that, “[b]oth before and after
the Supreme Court’s decision in Hightower, we have held
that a trial court’s abuse of discretion in rejecting a defendant’s request for self-representation requires reversal of
the defendant’s convictions and remand for a new trial.” 

(citing State v. Ortega, 

, 

(2017), and State v. Miller, 

, 

(2013)).
788                                                     State v. Martineau

          The state argues that our holding in Nyquist, which
is a recent decision, was “plainly wrong.”3 State v. Civil, 

, 

 (2017) (explaining that the
plainly wrong standard is “a rigorous standard grounded
in presumptive fidelity to stare decisis”). The state first
argues that we should disavow Nyquist because the cases
that Nyquist relied on for its holding, Miller and Ortega, are
distinguishable from the instant case (and from Nyquist)
because Miller and Ortega both involved a defendant’s
pretrial request, whereas here (as in Nyquist), defendant’s
request came midtrial. Defendant agrees that Miller and
Ortega are so distinguishable but argues that the distinction is irrelevant. We agree. The state makes no attempt to
explain why a trial court’s error in denying a defendant’s
pretrial request to represent himself should be remedied
by a new trial, while an identical midtrial request should
instead be remanded to the trial court to conduct the appropriate on-the-record balancing. We see no reason to conclude
that Nyquist is plainly wrong on that basis.
          The state also argues that Nyquist overlooked our
previous holding in State v. Williams, 

,

 (2017). In that case, the trial court denied a
midtrial request by the defendant to represent himself. The
state had argued that evidence of the defendant’s disruptive behavior supported an implicit finding by the court
that allowing the defendant to represent himself would
disrupt the proceedings. Id. at 716. We rejected that argument, because “nothing in the record indicates that the
court ‘actually weighed the relevant competing interests
involved.’ Hightower, 

.” Id. at 717. Accordingly,
we reversed and remanded. The state now emphasizes our
tag line in that case, in which we “reversed and remanded,”
arguing that we did not require a new trial. We note that
our tag line did not resolve either way whether a new trial
was necessary. See State v. Sewell, 

,

, rev den, 

 (2009) (“[I]n the absence
     3
       The state disputes that Nyquist stands for the proposition that, when a
trial court fails to conduct the proper balancing analysis on the record, the only
proper remedy is to remand for a new trial. The state, however, does not propose
another plausible alternative interpretation of Nyquist, and frankly we disagree.
See, e.g., State v. Martinez, 

, 

 (2019) (citing Nyquist
for exactly that proposition).
Cite as 

 (2019)                                   789

of more specific instructions on remand, when we reverse
and remand, we leave it to the trial court to determine and
apply the appropriate procedure and analysis on remand.”);
State v. Plueard, 

, 

 (2019)
(“Our use of the ‘Reversed and remanded’ tagline was sufficient to signal to the trial court that it would have authority,
on remand from this court, to determine the nature of the
proceedings that are necessary or appropriate on remand.”
(Internal quotation marks omitted.)).
         The state urges us to adopt the approach when
remanding certain evidentiary errors, in which we explicitly
leave to the trial court on remand to reweigh the evidence
and determine whether or not a new trial is necessary. See
State v. Baughman, 

, 

 (2017)
(“The trial court will be in the best position to assess the
need for a new trial after it has determined the purposes
for which the challenged evidence is relevant under OEC
404(3), and, if argued, under OEC 404(4), and whether to
admit it.”). We view the trial court’s task on remand in reanalyzing those evidentiary issues as fundamentally different
from the trial court’s task here.
         We recently addressed a similar issue in State v.
McDougal, 

, 

 (2019). There, the
trial court had relied on facts not in evidence to find the
defendant in contempt for violating a restraining order. The
state conceded the error, and the dispute was regarding the
proper disposition. As here, the state argued for a limited
remand so that the trial court could reconsider its verdict
relying only on facts in evidence. As we explained there:
        “A remand like the state seeks here would demand far
   more of the trial court [than in cases like Baughman]—
   more than we think is reasonable to ask. Such a remand
   would necessarily follow an error that was not harmless,
   i.e., an error that we could not say had ‘little likelihood’ of
   affecting the verdict. State v. Davis, 

, 

 (2003). Thus, a trial court that was required to reconsider its verdict in a criminal case on remand would have
   to reassess all of the evidence admitted at trial (with the
   exception of any erroneously admitted), on a cold record,
   to determine—possibly years after the fact—whether it
   again was persuaded beyond a reasonable doubt that the
790                                                   State v. Martineau

    defendant was guilty of the crime charged, despite the
    error that occurred at the original trial. In our view, it is
    not realistic to ask the court to perform that factfinding
    task on remand in the context of determining whether the
    state has proved the defendant’s guilt beyond a reasonable
    doubt.”

 (emphasis in original). The state asks for a similar remand here. As in McDougal, the scenario presented
here is fundamentally different from the type of situation
presented in Baughman, in which the trial court was asked
to reconsider a discrete evidentiary issue. A limited remand
here would require the trial court to review a cold record,
possibly years after the conclusion of the trial, and determine whether disruptions to those long-ago trial proceedings justified denying the defendant’s Article I, section 11,
right to self-representation. Such a remand, we think, is
unrealistic and would likely demand more than is reasonable to ask of a trial court. In any event, we conclude that,
at a minimum, the state’s arguments do not persuade us
that Nyquist was plainly wrong such that we should overrule that recent precedent.
         An error in the judgment notwithstanding, an
appellant generally must affirmatively demonstrate that an
error was prejudicial in order for us to reverse a judgment.
Or Const, Art VII (Amended), § 3; ORS 19.415(2); former
ORS 138.230 (2015).4 The harmless error doctrine “consists
of a single inquiry: Is there little likelihood that the particular error affected the verdict?” Davis, 

.
         Defendant does not advance an argument that the
error here was prejudicial but, rather, contends that the
type of error here is not subject to the harmless error doctrine. In making this argument, defendant relies on federal case law in the context of a defendant’s United States
Constitution Sixth Amendment right to self-representation
and the apparent lack of harmless error analysis in at least
one of our previous similar cases applying Oregon law. See

    4
      Former ORS 138.230 (2015) was repealed by Oregon Laws 2017, chapter
529, section 26, for judgments entered on or after January 1, 2018. Or Laws 2017,
ch 529, § 28. Because the judgment in this case was entered before that date,
former ORS 138.230 (2015) is still applicable.
Cite as 

 (2019)                              791

State v. Blanchard, 

, 

 (2010)
(“Under the Sixth Amendment, a court’s denial of a defendant’s right to be self-represented is ‘structural error’ that
is not subject to harmless error analysis.” (Quoting United
States v. Gonzalez-Lopez, 

, 

,

 (2006); McKaskle v. Wiggins, 

,
177-78 n 8, 

, 

 (1984).)); Miller, 

 (reversing for a new trial without conducting
a harmless error analysis). Defendant’s assertion that the
error here, as analyzed under Oregon law, is exempt from
the harmless error doctrine is without merit. See State v.
Erb, 

, 

 (2013) (applying
harmless error test in context of trial court’s error in allowing the defendant to proceed without counsel).
         Nevertheless, we cannot say that there is little
likelihood that the error affected the verdict. As defendant
explained to the trial court, his concern with his attorney
stemmed from his attorney’s refusal to call certain witnesses, including identification witnesses, whom defendant
considered to be “vital” to his defense. The court believed
that defendant’s counsel had strategic reasons for not calling those witnesses when it denied defendant’s request.
Regardless of whether defendant’s choice or his attorney’s
was better, we cannot say that the court’s error would have
had little effect on the verdict had defendant called different
witnesses and pursued his own trial strategy. “Where we
are unable to determine what the outcome of a case would
have been if the defendant had been represented by counsel
instead of proceeding without counsel, the error is not harmless.” Erb, 

 (internal quotation marks and
citation omitted).
         For the reasons above, we adhere to Nyquist and
conclude that the appropriate remedy in this circumstance
is to reverse and remand for a new trial.
        Reversed and remanded.