594
This is a nonprecedential memorandum opinion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 August 17, 2022, affirmed January 5, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
TASI AUTELE,
aka Brian Mulivai Autele,
aka Tasi Mulivai Autele,
Defendant-Appellant.
Washington County Circuit Court
17CR69755; A172873
Ricardo J. Menchaca, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Ingrid A. MacFarlane, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for appellant. Tasi Autele filed the supplemental brief pro se.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Robert M. Wilsey, Assistant Attorney
General, filed the briefs for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
ORTEGA, P. J.
Affirmed.
Nonprecedential Memo Op: 323 Or App 594 (2023) 595
ORTEGA, P. J.
Defendant appeals from a judgment of conviction
for third-degree assault, a lesser-included offense of the
charged offense of second-degree assault. On appeal, defendant raises two assignments of error and a supplemental
assignment of error. Defendant also filed a supplemental
pro se brief. As explained below, we affirm.
In his first assignment of error, defendant argues
that the trial court erred in denying him the right to retained
counsel of his choice, in violation of Article I, section 11,
of the Oregon Constitution, and the Sixth Amendment to
the United States Constitution. The facts relevant to this
assignment are procedural.
Defendant retained two lawyers, Mackeson and Hall,
to represent him in this case. On the date set for trial, the
state and defendant, represented by his retained counsel, litigated several pretrial motions in the morning. One
motion involved photographs which the court was inclined
to exclude from admission, but the court indicated that it
would revisit the issue if defendant’s testimony opened
the door to admitting them. At that point, the prosecutor
stated that Mackeson had “expressed to me concern that if
the defendant is confronted with these photos; that [defense
counsel] may have some ethical obligation to withdraw from
this case.” The state was concerned that such a withdrawal
would happen during the trial. The court reiterated that it
was excluding the photographs “at this point” and recessed
until the afternoon.
During the afternoon session, the court recounted
that it had met with the prosecutor and defense counsel in
chambers. The court stated that Mackeson had an ethical
conflict and requested to withdraw. The court did not think
it was appropriate to discuss the nature of the conflict on
the record and said that, “based on my understanding of the
conflict, I don’t know that I have a choice. So I will reluctantly grant the withdrawal.” The court also allowed Hall
to withdraw for the same reason and directed defendant to
promptly find a new lawyer and appear at a status hearing
in 10 days.
596 State v. Autele
At the status hearing, defendant appeared with
Mackeson and Hall, who requested to again represent defendant. The court denied the request, stating:
“At that point in time [(at the last hearing)], without
getting into specifics, Mr. Mackeson had made a motion in
my office and we put it on the record to withdraw based on
some ethical considerations, which, in my mind and in his
at the time, were significant.
“…
“The conflict may or may not have resolved itself, but, in
my mind, the Court’s mind, my concerns about the ethical
obligations that were raised in the last hearing we had, I’m
just not willing to reappoint Mr. Mackeson or Mr. Hall to
… represent [defendant].”
The court then appointed counsel for defendant and set
another status hearing. Defendant later retained new counsel who represented him for the remainder of the case.
We have explained:
“The right to counsel carries with it a right to counsel of
one’s choice. The corollary right of choice, however, is subject to judicial discretion if accommodation of the right to
choice would result in ‘a disruption of the orderly processes
of justice unreasonable under the circumstances of the particular case.’ ”
State v. Pflieger, 15 Or App 383, 386-87,
515 P2d 1348 (1973)
(citing State v. Greenough,
8 Or App 86, 92,
493 P2d 59
(1972)).
On appeal, defendant argues that, because there
was “no evidence of a conflict of interest that risked a disruption of the proceedings, and no evidence of a risk associated with a case delay,” the court could not interfere with
defendant’s choice of retained counsel. Defendant argues
that the mere request to reinstate his former counsel was
an implicit communication to the court that any conflict had
been resolved. The state responds that defendant failed to
make a record adequate for us to review the trial court’s
decision.
We agree with the state that the record is inadequate for our review. We are faced with a situation in which
Nonprecedential Memo Op: 323 Or App 594 (2023) 597
we do not have the information on which the trial court
based its decision. The court stated that it believed defense
counsel’s conflict of interest was significant and indicated
that it also believed that it presented a risk that defense
counsel would again have to withdraw. Also, from the record
that was made, we can discern that the conflict was one that
would arise, if at all, during the trial. If that happened, it
would be a “disruption of the orderly processes of justice.”
Without further information about the nature of the conflict
or whether the risk of the conflict arising during trial had
been resolved, we are not in a position in which we can say
that the trial court erred under the circumstances of this
case.
In his second assignment of error, defendant argues
that the trial court erred in giving a nonunanimous jury
instruction and that his conviction should be reversed
as a result. Because defendant was convicted by a unanimous jury verdict, we conclude that any error in giving
the nonunanimous jury instruction was harmless. State v.
Flores Ramos, 367 Or 292,
478 P3d 515 (2020).
In his supplemental assignment of error, defendant argues that the trial court plainly erred by failing to
instruct the jury on a culpable mental state with regard to
the serious physical injury element for third-degree assault,
as required by State v. Owen, 369 Or 288,
505 P3d 953
(2022), and State v. McKinney/Shiffer,
369 Or 325,
505 P3d
946 (2022).
We conclude that the trial court did not plainly err.
As relevant here, a person commits the offense of third-degree assault if the person “[r]ecklessly causes serious
physical injury to another under circumstances manifesting extreme indifference to the value of human life.” ORS
163.165(1)(b). The court instructed the jury that it had to
find, among other things, that defendant “recklessly caused
serious physical injury to [J].” The jury was also instructed
on the definition of “recklessly.”1 Together those instructions
1
The court instructed the jury:
“Recklessly: A person acts recklessly if that person is aware of and consciously disregards a substantial and unjustifiable risk that a particular
result will occur or a particular circumstance exists.
598 State v. Autele
told the jury that it had to find that defendant was aware
of and consciously disregarded the substantial and unjustifiable risk that he would cause J a serious physical injury.2
It is not “obvious” and it is “reasonably in dispute” whether
that instruction is erroneous under Owen and McKinney/
Shiffer, and, thus, any error does not qualify as plain error.
See, e.g., McKinney/Shiffer, 369 Or at 333 (stating standard
for plain error).
Finally, we turn to the errors raised by defendant
in his pro se supplemental brief that we have not already
addressed. As to those claimed errors, we are unable to
address the matters given defendant’s failure to comply
with relevant rules of appellate procedure for preparation of
briefs. ORAP 5.92(2); ORAP 5.45.
Affirmed.
“The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of care that a reasonable person
would observe in the situation. Recklessness is also established if a person
acts intentionally or knowingly.”
2
We note that the jury was also given the following instruction:
“As to any degree of assault, the State must prove beyond a reasonable
doubt that [defendant] was aware of the assaultive nature of his conduct and
that his conduct, in fact, caused [J] serious physical injury ….
“The State is not required to prove that [defendant] was aware that his
conduct would result in serious physical injury ….”
That instruction, however, did not tell the jury that it did not have to find that
defendant recklessly caused J serious physical injury, which it was specifically
instructed to do to find defendant guilty of third-degree assault.
