State v. Kirk

                                   142

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).
 Submitted June 24, affirmed September 28, 2022, petition for review denied
                       February 9, 2023 (

)


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                       ERIC LEE KIRK,
                     Defendant-Appellant.
                 Klamath County Circuit Court
                    19CR71527, 20CR00075;
                  A174341 (Control), A174342


   Marci Warner Adkisson, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and David Sherbo-Huggins, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Susan G. Howe, Assistant Attorney
General, filed the brief for respondent.
   Before James, Presiding Judge, and Aoyagi, Judge, and
Joyce, Judge.
   JOYCE, J.
   Affirmed.
Nonprecedential Memo Op: 

 (2022)                          143

          JOYCE, J.
        In these consolidated cases, defendant appeals from
a judgment of conviction for first-degree burglary, unlawful
use of a weapon, and tampering with a witness and bribing a witness. On appeal, defendant contends that the court
erred by (1) denying his motion to sever; (2) “unduly burdening” his right to represent himself; and (3) instructing the
jury that it needed to reach a unanimous verdict if it found
defendant not guilty. We affirm.
                        MOTION TO SEVER
         In November 2019, defendant was indicted for
domestic-violence crimes stemming from an assault and
burglary (the burglary case). While defendant was in custody awaiting trial, he wrote a series of letters to the victim
and asked the victim to get him “out of this mess” by suggesting that she lie about the events, inform the court that
she did not want to press charges against defendant, or not
show up for trial. In one letter, he also promised to repair
the door and window that he had damaged during the burglary if the victim got the criminal charges against him
dismissed. Those letters led to a second indictment against
defendant for tampering with a witness and bribing a witness (the tampering case).
         The trial court granted the state’s motion to consolidate the two cases. Defendant later moved to sever, arguing that he would be substantially prejudiced by the joinder because (1) the evidence was not mutually admissible in
each case; and (2) the evidence was not sufficiently simple
and distinct to mitigate the dangers otherwise created by
joinder. Specifically, defendant contended that in the tampering case, the state intended to introduce another series
of letters that he wrote to the victim in 2017 to prove that
he was the same person who wrote the letters in 2019, but
the 2017 letters had no relevance to the burglary case.1
Defendant argued that those 2017 letters—which contained
references to defendant’s anger-management problem, previous incarceration status, and his prior efforts to obstruct

    1
      The 2019 letters were unsigned whereas the 2017 letters had defendant’s
signature.
144                                                              State v. Kirk

justice—would “confus[e] the jury and hav[e] the risk that
the jury makes a decision on each individual count here
based on evidence that is not relevant.” Defendant further
argued that he would be substantially prejudiced because
he may want to testify in one case but not the other.
        The trial court denied defendant’s motion on the
grounds that the two cases are “straightforward and simple”
and “[m]uch of the evidence would be mutually admissible.”2
         On appeal, defendant assigns error to the trial
court’s denial of his motion to sever. Under ORS 132.560(3),
severance is appropriate if defendant is “substantially prejudiced” by the joinder of offenses. We review the trial court’s
determination that defendant failed to demonstrate “substantial prejudice” for legal error. State v. Crummett, 

, 

 (2015), rev den, 

 (2016).
         Defendant renews the contentions that he raised
below, arguing that he was substantially prejudiced because
evidence from the tampering case, specifically, the letters
defendant wrote to the victim in 2017, would not be crossadmissible in the burglary case had the cases been tried
separately.3 However, even assuming that were true, defendant nonetheless failed to demonstrate substantial prejudice. Where evidence in each case is “sufficiently simple and
distinct to mitigate the dangers created by joinder[,]” defendant is not substantially prejudiced by a denial of a motion
to sever. State v. Dimmick, 

, 

 (2012). Here, the charges against defendant involved
separate incidents on different days and were distinctly
    2
       The trial court later resolved defendant’s motion to suppress his 2017 letters off the record. The parties conferred with the court in camera about the 2017
letters, at which time the trial court ordered the prosecution to redact specific
statements referencing defendant’s incarceration.
    3
       Defendant also argues that he was substantially prejudiced because the
joint trial deprived him of the protections in the Oregon Evidence Code against
the admission of the “bad acts” evidence. In defendant’s view, the content of the
2017 letters—which demonstrated that he was an angry, manipulative person
who had treated the victim badly in the past and lacked respect for women and
police officers—invited the jury to view defendant as a bad person and more likely
to engage in assaultive conduct. As the state observes, defendant’s argument is
foreclosed by State v. Miller, 

, 

 (1998) (When charges
against a defendant are “joined lawfully for trial,” the evidence of the defendant’s
criminal conduct is “relevant to prove that defendant had perpetrated the particular offenses to which that evidence pertain[s].”).
Nonprecedential Memo Op: 

 (2022)            145

different in nature. Thus, the evidence in the two cases was
“not so complex that the jury could not sort through the testimony and determine what happened in each case.” State v.
McMinn, 

, 

 (1996); see also
Dimmick, 

 (permitting joint trial on drug
charges that were based on four different incidents that
occurred on four different days where the evidence in support of the charges was “sufficiently simple and distinct”).
         Defendant also suggests that “the trial court did
nothing to mitigate the risk of prejudice by joinder. It did
not instruct the jury to separate its consideration of the
evidence in each case[.]” Defendant is correct that the risks
present in joinder can be mitigated by jury instructions
that, to use defendant’s description, “separat[e] the evidence
and limit[ ] the jury’s consideration[.]” See State v. Buyes,

, 

 (2016) (observing that
limiting instructions on considering evidence of each charge
separately can suffice to mitigate any putative prejudice created by joinder); State v. Tidwell, 

,

 (2013), rev den, 

 (2014) (rejecting the
defendant’s argument that two DUII charges should have
been severed given the “probable effectiveness of limiting
instructions to the jury”).
         But the relevant question before the court when
it was deciding the motion to sever was whether defendant had demonstrated substantial prejudice. After the
court concluded that he had not, and, accordingly, denied
the motion to sever, defendant was free to request limiting
jury instructions on that topic. He did not. Nor did defendant suggest that the trial court was obligated to sua sponte
provide such instructions, which would require a separate
assignment of error. State v. Williams, 

, 772-
73, 

 (2015), rev den, 

, cert den, 

 (2016) (rejecting the defendant’s argument that he
suffered substantial prejudice because the trial court did
nothing to mitigate the prejudice, such as providing limiting jury instructions, because the defendant did not request
such instructions).
         Defendant further contends that he suffered substantial prejudice because defendant “may” have chosen to
146                                              State v. Kirk

testify in the burglary case and not the tampering case. As
we have in similar cases, we reject that argument because
of the availability of measures—such as limiting instructions and limiting cross-examination—that could mitigate
the potential prejudice identified by defendant. See State v.
Gensler, 

, 

 (2014), rev den, 

 (2015) (rejecting the defendant’s argument that a joint
trial would taint his ability to testify or remain silent given
that “the potential prejudice identified by [the] defendant
could be mitigated through jury instructions and by limiting the state’s cross-examination of [the] defendant”).
        We thus conclude that the trial court did not err in
denying defendant’s motion to sever the cases.
          RIGHT TO SELF-REPRESENTATION
         In defendant’s second assignment of error, he argues
that the trial court erred by “unduly burdening” his right
to represent himself. Whether a trial court violated a defendant’s right to self-representation is a question of law that
we review for errors of law. State v. Miller, 

, 

 (2013) (applying standard).
         After opening statements, defendant expressed his
frustrations with his counsel, and said “I almost wanted
to fire him and represent myself.” The trial court initially
responded to defendant that he “may not” represent himself at this point and told defendant to talk to his counsel.
Defendant stated that he has a right to represent himself
and that he “would rather defend [him]self other than go
put up with” his counsel. In response, the court stated that if
defendant decided to represent himself, he would have to be
“well versed in literally every page” of the Oregon Evidence
Code. The court further explained that defendant would be
expected to abide by the Evidence Code at trial. After defendant indicated that he would read the rules of evidence, the
court again encouraged defendant to talk more with his
lawyer about self-representation.
        After a short recess, the court read to defendant a
prepared list about the responsibilities and risks that defendant needed to be cognizant of to make a knowing, voluntary,
and intelligent decision to waive counsel. In that exchange,
Nonprecedential Memo Op: 

 (2022)             147

the court continued to encourage defendant to talk with his
counsel about whether to persist with his request to represent himself. The court also reiterated the disadvantages
defendant would have if he elected to proceed pro se and told
him:
      “You must know how to make legal arguments to the
   Court and present opening and closing statements to the
   jury. You must know how to question witnesses and how to
   present evidence necessary for your defense.
      “You must understand the Rules of Evidence. … You
   must know how and when to object to the use of improper
   evidence. …
     “You will be responsible for presenting evidence and
   making arguments about sentencing issues ….
       “You must know the consequences that may be imposed
   if you are found guilty and any possible sentences.”
         The court then stated that it would ask the jail to
give defendant access to the law library in case he chose to
represent himself at trial the next morning. Towards the
end of the colloquy, the court told defendant that it “can find
a voluntary and knowingly and intelligent piece of this,” and
ultimately, that it was defendant’s decision how he wished
to proceed. The court cautioned defendant, however, that
representing himself at trial is “a very complicated thing
to do.” The court informed defendant that if he decided
to waive counsel, the court would take up the matter the
next morning. Defendant responded, “Okay.” The following
morning—before the court made any ruling on whether
defendant could represent himself—defendant’s counsel
informed the court that defendant elected to proceed with
counsel’s representation.
          On appeal, defendant argues that the court summarily denied defendant’s request to self-representation by
delaying the waiver inquiry to the next day. Alternatively,
defendant argues that “by informing defendant of a laundry
list of legal skills and knowledge that he was required to
have or know,” the trial court placed improper limitations
on defendant’s exercise of his right to represent himself. We
disagree.
148                                              State v. Kirk

         Here, as it was required to do, the trial court provided defendant with the information that defendant needed
to make a knowing, voluntary, and intelligent decision to
waive counsel. State v. Meyrick, 

, 

(1992) (providing that “[a] colloquy on the record between
the court and the defendant” that “in some fashion, explains
the risks of self-representation is the preferred means of
assuring that the defendant understand[s] the risks of self-representation”). After it conducted the waiver inquiry, the
trial court expressly afforded defendant an opportunity to
renew his request for self-representation the next morning
if he desired to do so. The court suggested that defendant
consult with his counsel and arranged to have defendant
have access to the jail law library. Given the inherent risks
and disadvantages of self-representation, asking defendant
to consider his decision overnight and consult with counsel before his trial proceeded does not unduly burden his
request.

         Indeed, the following morning, before the court
issued a ruling with respect to defendant’s earlier request,
defendant chose to proceed with counsel. Under those circumstances, the trial court did not improperly delay or deny
defendant’s request for self-representation. State v. Groff,

, 

, rev den, 

 (2020)
(concluding that despite the defendant’s earlier unequivocal
request for self-representation, the trial court did not deny
his right to self-representation where the defendant “chose
to proceed with counsel before the [trial] court ruled with
respect to defendant’s request [to proceed pro se]”).

         We also disagree that the trial court placed improper
limitations on defendant’s exercise of his right to represent
himself. A trial court has an obligation to warn a defendant
of “the dangers and disadvantages of self-representation,” in
ensuring that an assertion of the right to self-representation
is made knowingly. State v. Hightower, 

, 

 (2017) (internal quotation marks omitted). The
“knowing” component refers to a defendant’s “knowledge
and understanding of the right to counsel.” Meyrick, 

-33 n 8. A defendant is said to understand their right
to counsel if, considering “the totality of the circumstances,”
Nonprecedential Memo Op: 

 (2022)             149

the record reflects that the defendant “substantially appreciates the material risks of self-representation in [their] case.”
State v. Jackson, 

, 

 (2001).
Indeed, a defendant’s waiver is likely to be unconstitutional
if the court’s warnings of the pitfalls of self-representation
were “cursory in nature and lacking in detail.” State v.
Lasarte, 

, 

 (2005); see also
Meyrick, 

 (“The more relevant information that
a trial court provides to a defendant … about the dangers
and disadvantages of self-representation, the more likely it
will be that a defendant’s decision to waive counsel is an
intentional relinquishment or abandonment of a known
right or privilege[.]”); Groff, 

 (concluding
that the trial court did not improperly “cajole[ ] [the] defendant to accept counsel despite his requests to the contrary”
when the trial court advised him of the benefits of having
counsel).
         Here, the colloquy demonstrated the trial court’s
effort to ensure that defendant had sufficient understanding of the risks and disadvantages of self-representation.
To be sure, the trial court told defendant that to represent
himself, he had to be “well versed in literally every page”
of the Oregon Evidence Rules and must know how to make
legal arguments, present opening and closing statements,
question a witness, and object to the use of improper evidence. As defendant observes, a defendant is not in fact
required to be “well versed in literally every page” of the
Oregon Evidence Rules and the court’s statement was thus
incorrect. However, over the span of 40 pages of transcript,
the trial court engaged with defendant in a considerable
(and legally correct) discussion about the roles of the evidentiary, procedural, and other rules in the court proceedings.
Viewing the record as a whole, the purpose of the trial court’s
conversation with defendant was to adequately explain to
him that despite his lack of legal training, he would nonetheless be expected to abide by the rules of evidence and
procedures if he elected to represent himself at trial and
that his unfamiliarity with those rules could keep him from
effectively presenting his case. See State v. Palmer, 

, 

 (1978) (“A defendant appearing
pro se must inform [themself] of and comply with court rules
150                                              State v. Kirk

as any other litigant.”); OEC 101 (general applicability of the
Oregon Evidence Code to criminal actions and proceedings).
         Accordingly, under the totality of circumstances, we
conclude that the trial court properly left the final decision
of whether to represent himself up to defendant, and thus
did not err by “unduly burdening” defendant’s right to waive
counsel.
        UNANIMOUS JURY INSTRUCTION FOR
              NONGUILTY VERDICT
         In his third assignment of error, defendant argues
that the court erred in instructing the jury that it needed
to be unanimous for not-guilty verdicts as well as guilty
verdicts. Although defendant is correct that that is error,
see State v. Ross, 

, 

 (2021), the
instructional error is harmless in light of the jury’s unanimous guilty verdicts. See State v. Martineau, 

, 

 (2022) (so holding).
        Affirmed.