378
31
368 Or
2021 State July
v. Hightower
22, 2021
Argued and submitted November 16, 2020; decision of Court of Appeals
affirmed, judgment of circuit court reversed, and case remanded to circuit court
for further proceedings July 22, 2021
STATE OF OREGON,
Petitioner on Review,
v.
GREGORY LEON HIGHTOWER,
aka Gregory Leon Hightower, Sr.,
Respondent on Review.
(CC 120632737) (CA A166654) (SC S067539)
491 P3d 769
During defendant’s initial criminal prosecution, the trial court denied
defendant’s repeated requests for self-representation. On appeal, the Oregon
Supreme Court determined that the trial court’s decision was not based on a
proper exercise of discretion, but instead appeared to reflect an understanding that the trial court did not have discretion to grant the requests midtrial.
The Supreme Court reversed defendant’s convictions and remanded to the trial
court for further proceedings. On remand, the trial court did not order a new
trial, but instead stood by its prior denial of defendant’s midtrial request to self-represent because it stated that it would have reached the same conclusion under
the proper discretionary framework. On appeal, defendant argued that the
Supreme Court’s decision to reverse and remand the initial case for further proceedings, without additional instructions, required the trial court to grant defendant a new trial. The Oregon Court of Appeals agreed with defendant and reversed.
Held: Defendant was entitled to a new trial on remand because the record could
have developed differently if the trial court had properly exercised its discretion
in the first instance.
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further
proceedings.
En Banc
On review from the Court of Appeals.*
Peenesh Shah, Assistant Attorney General, Salem, argued
the cause and filed the briefs for petitioner on review. Also
on the briefs were Ellen F. Rosenblum, Attorney General,
and Benjamin Gutman, Solicitor General.
______________
* On appeal from Multnomah County Circuit Court, Edward J. Jones, Judge.
301 Or App 750,
459 P3d 266 (2020).
Cite as
368 Or 378 (2021) 379
Ernest G. Lannet, Chief Defender, Office of Public Defense
Services, Salem, argued the cause and filed the brief for
respondent on review.
NELSON, J.
Balmer, J., filed a dissent, in which Garrett, J., joined.
The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
380 State v. Hightower
NELSON, J.
We consider this criminal case for a second time on
review. In our first decision in this case, State v. Hightower,
361 Or 412,
393 P3d 224 (2017) (Hightower I), we determined
that the trial court had erred when it denied defendant’s
midtrial request to dismiss counsel and represent himself
based on a mistaken belief that it did not have the authority to grant such a request. We reversed and remanded the
case to the trial court for “further proceedings” consistent
with that determination. On remand, the trial court did not
order a new trial. The court instead stood by its prior denial
of defendant’s midtrial request to self-represent because it
stated that it would have reached the same conclusion—
based on defendant’s trial disruptions—had it understood it
had the discretion to do that. On appeal, defendant argued
that this court’s decision to reverse and remand the initial case for “further proceedings,” without issuing specific
limiting instructions, did not permit the trial court to simply provide an alternative explanation for its denial of the
request for self-representation, without affording defendant
a new trial. The Court of Appeals agreed that defendant
was entitled to a new trial on remand and reversed. The
state petitioned for review of that decision, and we allowed
the petition. Because we agree with the Court of Appeals
that defendant was entitled to a new trial on remand, we
affirm.
I. FACTS AND PROCEDURAL BACKGROUND
A. Hightower I
Defendant was charged with multiple sex offenses,
all based on evidence that he sexually abused a 16-year-old
girl and forced her and her 18-year-old stepsister into prostitution. Defendant requested court-appointed counsel, and
the court granted that request.
Throughout the first several days of his trial, defendant repeatedly disrupted the proceedings by complaining
about the actions of his court-appointed counsel, questioning
counsel’s performance, publicly instructing counsel to pursue additional questioning, and attempting to raise his own
objections to witness testimony. The trial court repeatedly
Cite as 368 Or 378 (2021) 381
instructed defendant to be quiet and warned him that continued disruption could result in defendant’s removal from
the courtroom.
On the fourth day of trial, defendant announced that
he wished to represent himself in order to present evidence
that his court-appointed attorney refused to offer. The trial
court answered by explaining that it was the attorney’s job
to decide what evidence should be presented at trial, but the
court did not otherwise directly respond to the request for
self-representation. Throughout the rest of the trial, defendant continued to request permission to self-represent,
and the trial court repeatedly denied defendant’s requests.
Eventually, defendant’s court-appointed attorney argued on
defendant’s behalf that defendant was entitled to represent
himself and asked the trial court to explain why it continued to deny defendant’s requests. The court responded,
“Well, I’m not going to take you off the case. I’m not going
to right in the middle of the trial and change where we are.
Certainly people have a right to represent themselves, but
it doesn’t start in the middle of the trial, or indeed at the
beginning of the defense case.”
Court-appointed counsel continued as defendant’s trial
counsel for the remainder of the case, and defendant was
ultimately convicted on all seven counts and sentenced to
life in prison without the possibility of parole.
Defendant appealed, challenging the trial court’s
denials of his repeated motions to represent himself. After
the Court of Appeals affirmed, defendant petitioned this
court for review. We reversed. We first explained that,
although Article I, section 11, of the Oregon Constitution
establishes that a criminal defendant has a right to self-representation in a criminal proceeding, that right is not
absolute. Hightower I, 361 Or at 413. When a defendant’s
right to self-representation is asserted after the commencement of the criminal trial, the trial court retains discretion to
weigh the defendant’s constitutional right against the court’s
obligation to ensure a fair proceeding and its interest in an
orderly and expeditious trial.
Id. When a trial court elects to
exercise that discretion, however, its balancing of the competing interests should be reflected on the record.
Id.
382 State v. Hightower
In applying that rule to the facts of defendant’s case,
we concluded that the trial court’s statements appeared to
“reflect an understanding that, once trial commenced, defendant had forfeited the right to waive his right to counsel and
proceed pro se” and did not, as required, “reflect an exercise of discretion.” Id. at 421-22. In so deciding, we expressly
rejected the state’s argument that, based on the record and
defendant’s repeated disruptions during the course of the
proceedings, the trial court could have made a determination that the court’s interest in an orderly trial outweighed
defendant’s constitutional right to self-representation at
that stage in the trial proceedings and that that justified the trial court’s decision.
Id. at 422 (emphasis added).
Instead, we noted, “the test is not whether the court ‘reasonably could have’ made that determination. The test is
whether the record reflects that the trial court’s actual decision amounted to a reasonable exercise of its discretion.”
Id.
Accordingly, we reversed the lower court with a tagline that
read,
“The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.”
Id. (emphasis added). The opinion provided no additional
instructions.
B. Hightower II
On remand, the case was returned to the same trial
court judge who had presided over defendant’s 2012 criminal trial. Defendant’s newly appointed counsel requested a
new trial in light of this court’s opinion. The state argued,
however, that a new trial was not necessary, as long as the
trial court articulated on the record what it would have
done had it properly exercised its discretion and balanced
the competing interests before deciding to deny defendant’s
request to self-represent. According to the state, in its briefing before the trial court on the issue, “the Oregon Supreme
Court decision in Hightower merely requires that [the trial
court judge] state on the record that balancing of the competing interests has occurred.” The trial court agreed with
the state’s suggested analysis, explaining that if it had
“conducted the explicit exercise of discretion expected by
Cite as 368 Or 378 (2021) 383
the Supreme Court[,] it would have decided a denial of self-representation was justified” based on concerns about defendant’s continued trial disruption.
The trial court then went on to further explain that
the written record clearly indicated that the trial court’s
denials of defendant’s motions for self-representation were
based on the actions of defendant in the context of his particular case—especially the timing of the requests. The trial
court noted, and the written record reflected, that, during
the 2012 trial, defendant appeared to be unable to exercise
restraint, insisted on raising irrelevant issues, and maintained a general disregard for the court’s instructions. The
court concluded that defendant was not entitled to a new
trial because its previous decision to deny self-representation
was now articulated on the record as a proper exercise of
discretion. At sentencing, the trial court imposed the same
sentences it previously had imposed.
Defendant appealed a second time, arguing that
the trial court had erred in ruling that it was unnecessary
to hold a new trial. The state responded by arguing that the
trial court had acted within the scope of the remand order
issued by this court because the court had exercised the discretion available to it in the 2012 trial by placing the reasons
for its denial of defendant’s request for self-representation
on the record in proceedings on remand. The Court of
Appeals disagreed. Relying on its own opinion in State v.
Nyquist, 293 Or App 502,
427 P3d 1137 (2018), the Court of
Appeals, in a per curiam opinion, concluded 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.’ ” State v. Hightower,
301 Or App 750, 751,
459 P3d 266 (2020) (Hightower II)
(quoting Nyquist,
293 Or App at 507). The Court of Appeals
described the trial court’s initial error—its decision to deny
defendant’s continued requests for self-representation on
the mistaken belief that it did not have the authority to
grant such a motion midtrial—as not harmless, a finding
which, in its view, was implicit in this court’s decision to
reverse and remand the case in Hightower I. Hightower II,
301 Or App at 752. Accordingly, the court held that the only
option available to the trial court on remand was to grant
384 State v. Hightower
defendant’s request for a new trial.
Id. The judgment was
reversed, and the state petitioned for review, seeking clarity
from this court as to the scope of the trial court’s authority
on remand.
II. DISCUSSION
The parties to this case have presented a specific
question about how a trial court should proceed after an
appellate court remands a case to that court for further
proceedings. Both parties acknowledge that our opinion in
Hightower I identified a legal error—the trial court’s failure to recognize that defendant’s midtrial request to self-represent could not be rejected as a matter of law but,
instead, presented the court with a discretionary choice—
that occurred during defendant’s trial. The parties do not
agree, however, on what the trial court was permitted, or
required, to do on remand to remedy that error. On review,
the state proposes that, as a rule, trial courts should have
authority on remand to decide if an error identified by the
appellate court can be remedied without a new trial, so long
as the appellate court’s substantive ruling does not foreclose
that approach. By contrast, defendant contends that when
an appellate court remands a case after concluding that
legal error occurred during the original trial, the trial court
does not have the authority to retroactively “cure” the error
and reinstate the original judgment without conducting a
new trial—unless the appellate court’s remand instructions
specifically provide for that possibility.
The state argues that a new trial is not necessary in
every remanded case. Instead, the state proposes a rule that
would allow the trial court to evaluate the identified error
and determine whether it had a “substantive effect” on the
trial. The state contends that its proposed rule recognizes
that appellate courts are not always in the best position to
evaluate the “substantive effect” of a particular error. In the
state’s view, some trial court errors do not have a “substantive effect” on the outcome of the trial and, in those cases,
the trial court should be free to craft the further proceedings on remand, absent explicit instructions otherwise. The
state contends that such a rule would promote the principles
of predictability, consistency, efficiency, finality, and justice.
Cite as 368 Or 378 (2021) 385
Defendant argues that the state’s “substantive
effect” approach would effectively undermine the duty and
authority of the appellate courts to determine whether errors
identified on appeal were harmless and, instead, requests
that this court grant defendant a new trial. Defendant
claims that his proposed rule—that a new trial is required
whenever an appellate court issues a general remand order
without limiting instructions that say otherwise—promotes
the same judicial principles (predictability, consistency, efficiency, finality, and justice) that the state’s rule claims to
protect, while still deferring to the appellate courts’ authority to determine whether the error was harmless or not. In
defendant’s view, our decision to issue a general remand
order in Hightower I, without limiting instructions, did not
authorize the trial court to conduct its own remedial efforts
because we did not explicitly provide for that option. Thus,
defendant contends, a new trial is required to remedy the
identified error.
In our view, neither proposed rule fully explains
why we conclude that, in this case, defendant was entitled
to a new trial on remand. As we explain below, each opinion
that results in remand by an appellate court carries with
it its own explicit and implicit determinations about how
the record developed below and the error that occurred. To
interpret the appellate court’s decision to remand a case, the
trial court should focus not only on the explicit and implicit
instructions provided in the appellate court’s opinion, but
also on the entirety of the record as it relates to the identified error. To explain our decision in this case, we begin with
an explanation of what an appellate court decides when it
issues a remand order and what we have previously said
regarding how a trial court should interpret that decision.
Then, to illustrate the approach that a trial court should
take when evaluating how to address an error on remand,
we turn to some of the cases cited by both parties in support of their own proposed rules—cases where this court did
issue limited remand instructions—and describe how those
cases can serve as direction for a trial court’s own analysis
in future cases. Finally, we apply the framework to the facts
of this case and explain why defendant was entitled to a new
trial on remand.
386 State v. Hightower
A. Overview of Appellate Decision-Making Process
We agree with the Court of Appeals that, implicit in
our decision to reverse and remand defendant’s case the first
time it came before our court, was a determination that the
error by the trial court was not harmless. See Hightower II,
301 Or App at 751-52 (“On that point, we think that implicit
in the Supreme Court’s decision to reverse and remand is
a determination that the trial court’s error was not harmless.”). Article VII (Amended), section 3, of the Oregon
Constitution governs when this court is required to affirm a
judgment, despite the occurrence of legal error at trial. That
provision reads:
“If the supreme court shall be of opinion, after consideration of all the matters thus submitted, that the judgment
of the court appealed from was such as should have been
rendered in the case, such judgment shall be affirmed,
notwithstanding any error committed during the trial; or
if, in any respect, the judgment appealed from should be
changed, and the supreme court shall be of opinion that it
can determine what judgment should have been entered in
the court below, it shall direct such judgment to be entered
in the same manner and with like effect as decrees are now
entered in equity cases on appeal to the supreme court.”
Article VII (Amended), section 3. That provision provides
the foundation for the “harmless error” test employed by
this court. See State v. Davis, 336 Or 19, 27,
77 P3d 1111
(2003) (“The phrase ‘harmless error’ is a shorthand reference to a legal standard, discussed below, that the Oregon
Constitution requires this court to apply after determining
in an appeal or on review that a trial court has erred.”).
The harmless error test asks a single question: is there little likelihood that a particular error affected the verdict?
Davis,
336 Or at 32 (quoting State v. Parker,
317 Or 225, 234
n 10,
855 P2d 636 (1993)).
Before this court decides to reverse a judgment of
conviction based on an error, it has an independent duty
to consider whether the error was harmless. See State v.
Sperou, 365 Or 121, 140,
442 P3d 581 (2019) (“The state
has not developed a harmless-error argument, but we have
an independent obligation to consider whether defendant
Cite as
368 Or 378 (2021) 387
was prejudiced.”). In light of that obligation, our decision to
reverse defendant’s judgment of conviction in Hightower I—
or, for that matter, our decision to reverse any case where we
do not explicitly assert otherwise—carries with it an implicit
determination that the trial court’s error was not harmless.
After this court identifies a legal error that was
not harmless and remands the case to the trial court, that
court generally has the flexibility to determine how to proceed on remand, so long as that decision is made within the
boundaries set by the appellate court’s instructions. Village
at Main Street Phase II, LLC v. Dept. of Rev., 360 Or 738,
748,
387 P3d 374 (2016) (Village II). There are limitations on
that flexibility, however, and the lower court’s decisions are
“constrained not only by the express order of the appellate
court’s remand, but also by its implied directive when considered in the context of the court’s entire opinion.” Village II,
360 Or at 748. Specifically, on remand, the trial court must
act within the scope of the authority granted to it in the
appellate court’s opinion.
Id. at 749.
In addition to our directives, both explicit and
implicit, a trial court evaluating how to proceed on remand
should also consider whether the record could have developed differently if the trial court had not erred. How a trial
court decides to proceed on remand will necessarily depend
on the context of the error. The trial court needs to evaluate
the error, along with the explicit and implicit instructions
from the appellate court, and consider the impact of the
error on the record. If the trial court determines that the
record could have developed in a materially different way if
the error had not occurred, then a defendant is entitled to a
new trial.
Before we proceed to an examination of our prior
cases in order to illustrate this approach, we emphasize the
difference between an appellate court’s determination that
an error was not harmless and a trial court’s subsequent
evaluation of the record to determine whether an identified
error can be cured without a retrial. Although Article VII
(Amended), section 3, of the Oregon Constitution precludes
reversal when there is “little likelihood” that a particular
error affected the verdict, see Davis, 336 Or at 32, there
388 State v. Hightower
may be instances in which a reversible error did not affect
the verdict in a way that requires a new trial. An appellate
court’s decision that reversal is required is distinct from a
decision about whether retrial is necessary.
As the cases discussed below indicate, sometimes
this court may issue specific instructions on remand. In those
instances, the trial court must follow the instructions provided. In other cases, we may provide more general remand
instructions. We acknowledge that, at times, a general
remand order for “further proceedings” can place the trial
court in the difficult position of having to determine how to
address the identified error. When this court elects to issue
such a general remand order, rather than provide more specific instructions, there may be varying reasons for doing so.
In some cases, complex factual and legal issues, or strategic
decisions by the parties, make it difficult to anticipate the
arguments that may be made on remand. Or, a decision to
issue a general remand order may reflect our recognition that
we may not be in the best position to fully understand the
impacts of a more limited remand on the rights of the parties.
We try to provide clear directions when we are certain that
a new trial is, or is not, required. But, when we do not issue
explicit instructions regarding the direction that the trial
court should take on remand, we intend this opinion to provide trial courts with some guidance in making that decision.
B. Cases Illustrating When an Error May Be Curable Without
a New Trial
There are times that this court has expressly issued
specific instructions to trial courts informing them that,
under certain conditions, a new trial may not be necessary.
Although the cases discussed below have been cited by the
parties in support of their own proposed rules, we see them
differently: Those cases provide examples of when, and how,
an error may be addressed without a new trial.1
1
The parties have also cited additional cases in support of their proposed
rules, including State v. Baughman, 361 Or 386,
393 P3d 1132 (2017), and State
v. Cartwright,
336 Or 408,
85 P3d 305 (2004). In both of those cases, this court
issued limiting instructions that allowed the trial court to cure the error within
the record that had already developed. Because those cases are similar to the
cases identified here, and would apply the same analysis, we do not discuss them
in further detail.
Cite as
368 Or 378 (2021) 389
The first of those cases is State v. Boots, 315 Or 572,
848 P2d 76 (1993) (Boots II). In the defendant’s initial trial,
the jury considered alternative theories of aggravated murder
based on the same criminal action. State v. Boots,
308 Or 371,
373,
780 P2d 725 (1989) (Boots I). The trial court instructed
the jurors that, so long as they could reach a unanimous
decision that defendant had committed aggravated murder,
they need not agree on the particular theory under which the
defendant was guilty. Boots I,
308 Or at 374-75. The defendant was convicted. On review, we determined that the trial
court’s instruction to the jury was reversible error.
Id. at 381.
We remanded the case for further proceedings consistent
with our opinion but also included further instructions: “On
remand, the state may choose whether to reduce the defendant’s conviction and sentence to murder under ORS 163.115
or to retry the charge of aggravated murder.”
Id.
When the case returned to the trial court, the state
decided to retry the aggravated murder charge, however, the
state elected to pursue only one theory of aggravated murder and took the position that that did not require a retrial
of the entire case. Boots II, 315 Or at 575. Agreeing with
the state that that approach was permissible, the trial court
instructed the jury that the defendant had already been
convicted of murdering the victim and that its sole function
was to determine whether the single aggravating factor on
which the state chose to rely existed or not.
Id. After the
defendant was convicted again, he appealed, arguing that
the limited retrial was inconsistent with the instructions
to the trial court in Boots I. This court, ultimately, did not
agree with the defendant:
“There is no question that defendant, in his original
trial, was tried and found guilty of the lesser-included
offense of murder, ORS 163.115. … If all elements of a
lesser-included offense have been fully and fairly alleged
and proved, an appellate court may order a retrial limited
to the element establishing the greater offense. Under the
directions given by this court to the trial court, the trial
court in this case could do the same, that is, order a retrial
limited to those issues that caused the appellate court to
reverse defendant’s conviction on the greater offense.”
Boots II, 315 Or at 577.
390 State v. Hightower
The actions of the trial court in Boots II are in
accord with the rule we have articulated. In Boots I, the
error was in the instructions to the jury about the need for
unanimity on the aggravating factors; the error was not in
the instructions about the underlying crime of murder. On
remand, the trial court could correct course in its instructions about the aggravating factor on which the state chose
to rely; the record as to the underlying murder charge would
not have developed differently.
The second case that illustrates our approach is
State v. Harrell/Wilson, 353 Or 247,
297 P3d 461 (2013).
There, this court considered whether the trial court had
improperly denied both of the defendants’ separate midtrial
attempts to waive their right to a jury trial. Harrell/Wilson,
353 Or at 249. To address that question, this court began
by evaluating the constitutional right to waive a jury
trial, as guaranteed by Article I, section 11, of the Oregon
Constitution and concluded that a trial court can exercise its
discretion to grant or deny a midtrial jury waiver but that
that decision should be guided by various factors, including judicial economy, the length of the trial, and the preference of the opposing party.
Id. at 264. After articulating the
applicable legal standard, this court evaluated the record in
each defendant’s case and determined that both trial courts
had erred in denying the midtrial jury waiver requests,
and remanded both cases back to the trial court for further
proceedings.2
Id. at 265-66. Then, this court addressed the
2
Although this court in Harrell/Wilson reached the same conclusion as to
both defendants, the court’s reasons for reaching that conclusion were slightly
different in each case. The record in Harrell’s case did not reflect the basis for the
trial court’s decision, and, thus, a remand to reconsider the waiver was appropriate. See Harrell/Wilson, 353 Or at 265 (“Because we cannot determine the
actual basis on which the trial court refused to consent to defendant’s exercise
of his right to waive the jury, we conclude that our best course is to remand to
the trial court to reconsider defendant’s jury trial waiver in accordance with this
opinion.”). In Wilson’s case, the trial court had only considered one of the factors
required in reaching its decision, rather than the full set of factors required to
properly exercise its discretion. See
id. at 265-66 (“[T]he trial court erred because
it withheld its consent to defendant’s jury trial waiver based solely on the prosecutor’s perceived objection—a position that was not based on considerations of
speed, economy, or the protection of defendant’s constitutional rights. Because
the trial court withheld its consent to defendant’s jury waiver based on an impermissible criterion, its decision in that regard was not produced by an exercise
of discretion guided by the above-mentioned considerations. Consequently, we
remand to the trial court to reconsider defendant’s jury trial waiver.”).
Cite as
368 Or 378 (2021) 391
proper procedure on remand, explicitly stating that, in both
cases, a new trial was not necessary unless, after reconsidering each defendant’s midtrial jury trial waiver under the
complete, proper framework, the trial court determined that
it would have granted the waiver, rather than denying it.
See
id. (remanding Wilson to the trial court with instructions to “reconsider defendant’s jury trial waiver in accordance with this court’s opinion” and, only “[i]n the event the
circuit court determines that it should not have withheld its
consent to defendant’s jury waiver,” is it necessary for the
trial court to grant a new trial).3
In that case, the evidence that was relevant to the
court’s decision was uncontested and the parties had made
all of the arguments they wished to make about whether
the defendants should be permitted to waive their jury trial
right midtrial. Because of the nature of the errors in those
cases, there was a way to remedy the errors without conducting new trials. There, this court explicitly permitted the
trial court to decide the issue that had initially been before
it, after this court identified the complete proper framework
to be applied.
When, as distinct from Boots and Harrell/Wilson,
a trial court does not have the benefit of our instruction,
it must determine for itself whether the record would have
developed differently had the trial court not erred in the
underlying case. As we noted in Village II, a trial court
should first consider the explicit and implicit instructions
contained with the appellate court’s opinion. Village II, 360
Or at 748. But the trial court cannot stop there, it is also
necessary to evaluate the impact that the error identified by
the appellate court had on how the record could have developed below. Where the trial court cannot conclude that the
record would have developed in materially the same way
without the error, a defendant is entitled to a new trial.
3
Harrell’s case involved an additional wrinkle, because, at the conclusion of
the original trial, “the trial judge stated that he would have acquitted defendant
on all eight counts” had he been the finder of fact. Harrell/Wilson, 353 Or at 251.
As a result, we directed the trial court to “issue an order reversing defendant’s
convictions and entering judgment of acquittal on all counts,” instead of holding
a new trial, if it determined that “it should not have withheld its consent to defendant’s jury waiver[.]”
Id. at 266.
392 State v. Hightower
C. Application to This Case
We return now to the case before us. Here, the
trial court’s decision not to grant defendant a new trial was
impermissible because one cannot say whether the record
below would have remained the same in the absence of the
error. When this court first analyzed the decision of the
trial court to deny defendant’s midtrial request for self-representation in Hightower I, we determined that the trial
court had based its decision to deny defendant’s request on
a mistaken understanding of the scope of its authority to
grant such a request:
“[The trial court’s] statements do not reflect an exercise
of discretion or any finding that granting the motion would
significantly delay or disrupt the trial. Rather, as we have
noted, they appear to reflect an impression that the law
simply does not permit a defendant to waive the right to
counsel and proceed pro se once trial has commenced. That,
as we have explained, is incorrect as a matter of law.”
Hightower I, 361 Or at 422. To clarify, we did not decide that
the trial court had erred in denying defendant’s request;
instead, we identified the legal error as the trial court’s
mistaken belief that it did not have the authority to grant
the request once trial had commenced. In addition, as discussed above, we implicitly determined that the error was
not harmless and, thus, required reversal.
We acknowledge that our decision did not provide
explicit direction, one way or another, regarding how the
trial court should proceed on remand. However, because the
record could have developed differently had the trial court
not erred, a new trial was required. On remand, the trial
court decided that, if it would have understood the extent of
its authority and discretion, it would have denied defendant’s
motion for self-representation, based on its evaluation of
defendant’s trial disruptions. That reasoning, however, was
not given to defendant in the first instance. Instead, when
asked for the reason that it was denying defendant’s request
for self-representation, the trial court said only that it was
not going to take counsel off the case in the middle of the
trial. Had the trial court correctly stated the concern that
it first expressed on remand, in the context of defendant’s
Cite as 368 Or 378 (2021) 393
request to represent himself, then the evidence and arguments may have been different. The dissent understands
the potential for how the record could have developed, and
the consequence of the trial court’s decision, differently and,
on those points, we respectfully disagree.
Here, it was necessary for the trial court to provide
defendant with an opportunity to explain and respond to the
trial court’s concerns about his disruptive behavior in the
context of his requests for self-representation. Because the
trial court did not do that in the first instance, and because
the record could have developed differently if it had, a new
trial was required. In so deciding, we recognize that trial
courts are often expected to make decisions in a moment
and cannot always see ahead to understand how those decisions, had they been made differently, could have affected
the development of the record. Even with the benefit of additional time and collaborative decision-making, we too have
difficulty in that regard. In the future, we all must continue to
consider how best to promote the principles—predictability,
consistency, efficiency, finality, and justice—identified by
both the state and defendant here.4 In this case, though, we
have no doubt that the trial court’s failure to recognize its
discretion in the first instance was an error that could not
be corrected without a new trial.
III. CONCLUSION
The decision of the Court of Appeals is affirmed.
The judgment of the circuit court is reversed, and the case
is remanded to the circuit court for further proceedings.
BALMER, J., dissenting.
I agree with much of the majority’s discussion of the
proper approach for a trial court to take when an appellate
4
In the interest of promoting those same principles, when a party to an
appeal has a request for a specific procedure on remand, whether that procedure
would require limiting instructions or not, we encourage parties to present arguments advocating for that procedure before the appellate courts. Although there
will be instances where we do not feel adequately informed about the full range
of possible issues that may arise in a given limited procedure, and may decline to
directly decide those procedures for the trial court, those arguments may allow
an opportunity for this court to provide more specific instructions to the trial
courts when we decide to do so.
394 State v. Hightower
court reverses and remands a case to the trial court “for
further proceedings,” as we did in State v. Hightower, 361
Or 412, 422,
393 P3d 224 (2017) (Hightower I). I disagree,
however, with the majority’s conclusion that the trial court
here committed reversible error when it denied, under the
standard we set out in Hightower I, defendant’s request to
represent himself and reinstated his conviction. For that
reason, I respectfully dissent.
As the majority points out, when this court reverses
a lower court decision, we sometimes remand “for further
proceedings” and sometimes provide more specific instructions as to what the trial court should or may do on remand.
We may direct that the trial court conduct a new trial. See,
e.g., State v. Ward, 367 Or 188, 190,
475 P3d 420 (2020) (concluding that the trial court erred in denying the defendant’s
motion to suppress and that that error required a reversal
of the defendant’s convictions and a remand for a new trial).
Or we may provide additional guidance or options for the
trial court or the parties short of a new trial. Illustrative is
State v. Cartwright, where we directed that certain information that should have been available to the defendant be
provided to him and that further trial court proceedings
be held, after which the trial court was to decide whether
it should “reinstate the original judgment of conviction” or
whether it “must order a new trial.”
336 Or 408, 421,
85 P3d
305 (2004).
We have often taken a similar approach in cases
involving evidentiary error. In State v. Baughman, for example, we reversed the defendant’s multiple convictions for
child sex abuse because the trial court incorrectly admitted evidence of similar uncharged conduct for what the
court considered to be nonpropensity purposes. 361 Or 386,
410,
393 P3d 1132 (2017). But after reversing the judgment
because of the trial court’s legal error, we explicitly recognized that a new trial was not necessarily required; rather,
the court stated that, “[i]n this circumstance, we think it
best to leave it to [the trial court] to determine, on a caseby-case basis, whether, after conducting a correct analysis
under OEC 404 and OEC 403, other acts evidence should
again be received and whether a new trial is required or
appropriate.”
Id. And, in a case quite similar to this one,
Cite as
368 Or 378 (2021) 395
State v. Harrell/Wilson,
353 Or 247,
297 P3d 461 (2013), this
court considered whether the trial court judges in two cases
consolidated for appeal failed to apply the correct standard
when they denied each defendant’s attempts—made, as
here, in the middle of trial—to waive their right to a jury.
We concluded that both judges had erred in denying those
motions because they applied the wrong legal standard. But
again—as in Cartwright, Baughman, and other cases—we
did not order new trials, but instead remanded to the trial
courts “to reconsider defendant’s jury trial waiver” in accordance with this court’s opinion. See
id. at 265 (Harrell);
id.
at 266 (Wilson). I agree with the majority opinion’s view of
those precedents.
The majority opinion also is correct in citing and
following Village at Main Street Phase II, LLC II v. Dept.
of Rev., 360 Or 738, 748,
387 P3d 374 (2016) (Village II), for
the proposition that a trial court “generally has the flexibility to determine how to proceed on remand, so long as that
decision is made within the boundaries set by the appellate
court’s instructions,” 368 Or at 387, including “ ‘the express
order of the appellate court’s remand … [and] its implied
directive when considered in the context of the court’s entire
opinion,’ ” id. (quoting Village II,
360 Or at 748).
As to the majority’s application of that test here, however, I respectfully disagree. The central holding—indeed,
the only holding—in Hightower I was that a trial court has
discretion to decide whether to permit a defendant to waive
the right to counsel and proceed pro se once trial has commenced. 361 Or at 422. Reviewing the record in Hightower I,
we concluded that it appeared from the judge’s comments
that he did not, in fact, exercise discretion in making his
ruling, because he understood the law not to give him any
authority to allow a waiver of the right to counsel midtrial.
Id. In failing to exercise discretion in ruling on defendant’s
request, the trial court committed legal error. For that reason,
we reversed the judgment of conviction and remanded. Id.
On remand, defendant argued that a new trial was
required. The state took the position that the trial court,
as a preliminary matter, should reconsider the error that
was the basis for the reversal in Hightower I—the denial
396 State v. Hightower
of defendant’s motion for self-representation—and apply
the correct legal standard for ruling on such a motion. The
state argued that if, applying the legal standard set out in
Hightower I, the trial court determined that it would have
allowed defendant to proceed pro se, it should conduct a new
trial. If, however, the trial court determined that, applying
the correct legal standard, it would again have denied the
motion for self-representation, it could reinstate defendant’s
conviction based on the jury verdict.
The trial court agreed to reconsider its denial of
defendant’s motion to represent himself, applying the
Hightower I standard. The court reviewed both the written transcript and the audio record and, in a six-page order
explaining its ruling, concluded that “had this court conducted the explicit exercise of discretion expected by the
Supreme Court[,] it would have decided a denial of self-representation was justified.” The court reviewed at length
defendant’s abusive conduct towards witnesses during trial,
his disruptions and delays, his consistent disregard of the
court’s instructions, and the court’s concerns about its
ability to maintain the courtroom without a lawyer there
to participate in the management of defendant. The court
described defendant as “incapable of meeting the court’s
reasonable expectations regarding civility or relevance,”
and stated that defendant “saw self-representation as an
escape from the legal and ethical constraints that confined
his attorney.” Based on those concerns, the court concluded
that “it was only with the concerted efforts of the court and
defense counsel that the jury was able to hear the case without substantial disruption” and that defendant’s “conduct
was such that no reasonable judge would have allowed him
to handle his own defense.”
The majority, however, concludes that, “because the
record could have developed differently” if the trial court had
exercised its discretion when it first considered defendant’s
request for self-representation, “a new trial was required.”
368 Or at 393. The majority reaches that conclusion in part
by noting that implicit in Hightower I was this court’s conclusion that the trial court error in denying defendant’s
midtrial request to proceed pro se was “not harmless.” Id.
at 386, 392. I again agree with the majority that the initial
Cite as 368 Or 378 (2021) 397
error was “not harmless.” But that legal conclusion does not
necessarily mean that a new trial was required.1
Whenever we reverse a trial court judgment, we
necessarily have determined that the error below was not
harmless. Unless we can conclude that the error was prejudicial, we are required by Article VII (Amended), section 3,
to affirm the judgment. State v. Davis, 336 Or 19, 28,
77
P3d 1111 (2003) (under Article VII (Amended), section 3,
appellate court “must affirm a judgment, despite any error
committed at trial, if, after considering all the matters submitted, the court is of the opinion that the judgment ‘was
such as should have been rendered in the case’ ”). Because
we reversed the trial court judgment in Hightower I, we necessarily concluded that the trial court’s legal error in failing to exercise its discretion when it ruled on defendant’s
request to proceed pro se was not harmless.
But our decisions in Cartwright, Baughman, and
Harrell/Wilson were identical in that respect. In each of
those cases we concluded that the trial court had erred, and,
because we reversed the trial court, we necessarily found
that the error was not harmless. In each of those cases, if
we had concluded that the error was harmless, we would not
have reversed and remanded, but instead would have identified the error, but affirmed. See, e.g., State v. Ashkins, 357
Or 642, 643,
357 P3d 490 (2015) (although the trial court
erred in failing to give the defendant’s proposed concurrence
instruction, the error was harmless, and so the defendant’s
convictions were affirmed). We remanded those cases to
the trial court where further proceedings would take place.
Depending on the results of those proceedings, including
further decisions or orders from the trial court, it may have
been appropriate for the trial court to reinstate the judgment or to conduct a new trial.
1
The Court of Appeals appears to disagree. Its opinion below quotes one of
its earlier cases for the proposition 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 new trial.’ ” State v. Hightower, 301 Or
App 750, 751, 459 P3 266 (2020) (quoting State v. Nyquist,
293 Or App 502, 507,
427 P3d 1137 (2018)). The majority does not need to—and does not—take that
approach to resolve this case, and I question whether it is a correct statement of
the law.
398 State v. Hightower
Here, our opinion in Hightower I did not itself foreclose the trial court from reconsidering its ruling on self-representation. If the trial court had concluded on remand
that, exercising discretion as required by our opinion, it
would have ruled differently and permitted defendant to
represent himself, a new trial would have been necessary.
But it was also permissible, and certainly not an abuse of
discretion here, for the trial court to reconsider its earlier
decision under the proper standard and to determine that it
would have reached the same result, which it did.
The majority’s primary reason for rejecting the
trial court’s approach here is that the trial court failed to
recognize that, “because the record could have developed
differently had the trial court not erred, a new trial was
required.” 368 Or at 392. But the same was true, for example, in Harrell/Wilson where, if the trial court had allowed
the midtrial motion to waive a jury trial, the record could
well have been developed differently by trial counsel—and
yet we did not order a new trial. 353 Or at 266. As applied
here, the majority asserts that the trial court’s reasoning
for its decision to deny self-representation—its “evaluation
of defendant’s trial disruptions”—“was never given to defendant in the first instance.” 368 Or at 392. If it had been,
“the evidence and arguments may have been different.” Id.
at 393. The majority concludes that “[i]t was necessary for
the trial court to provide defendant with an opportunity to
explain and respond to the trial court’s concerns about his
disruptive behavior ….” Id. In my view, that explanation is
insufficient.
First, Hightower I reversed the trial court judgment
based on a single error: the trial court’s misunderstanding that it had no discretion to allow defendant’s midtrial
request for self-representation. 361 Or at 422. That error
was not harmless because if the trial court had understood
that it had discretion, it might have allowed defendant’s
request, and, if defendant had been allowed to represent
himself for the rest of the trial, it is possible that the remainder of the trial would have played out differently. But, on
remand, the trial court certainly was reasonable in thinking, based on what we said in Hightower I, that its reconsideration of defendant’s request, exercising its discretion, was
Cite as 368 Or 378 (2021) 399
a threshold issue. The court did just that and reached the
same result. I do not see that as inconsistent with Hightower I
or as an abuse of the trial court’s discretion in deciding
whether it would have allowed defendant’s request to represent himself.
Second, the majority’s statement about why the
trial court’s decision on remand was error does not seem to
connect to the rationale for this court’s decision and remand
in Hightower I. The legal basis for Hightower I was the trial
court’s incorrect understanding that it lacked discretion to
allow the midtrial motion; the factual basis was that nothing in the record showed that “the trial court’s actual decision amounted to a reasonable exercise of its discretion.” 361
Or at 422. Without “some indication” in the record of “how
the trial court actually weighed the relevant competing
interests involved,” an appellate court could not review the
decision to determine whether the trial court had abused
its discretion in denying self-representation. Id. at 421. The
court emphasized that the right to waive counsel “is not
absolute and unqualified,” and, “[i]n particular, once a trial
has begun, a number of [other] interests … come into play.”
Id. at 417. We described the trial court’s “overriding obligation” as ensuring “the fairness and integrity of the trial and
its inherent authority to conduct proceedings in an orderly
and expeditious manner.” Id. at 417-18. This court summarized its holding: “If a trial court exercises [its] discretion to
deny a defendant’s motion for self-representation, it should
make a record that reflects how it exercised that discretion.”
Id. at 413.
In its order on remand, as described above, the
trial court did exactly what this court asked in Hightower I.
Nothing in Hightower I suggested that the trial court erred
during trial by not warning defendant that the court would
deny his motion to self-represent if he failed to behave, by
not giving defendant the reasoning for its decision regarding self-representation, or by not providing defendant an
opportunity to explain and respond to the trial court’s concerns. Nor did this court identify any reversible error other
than the trial court’s failure to exercise discretion in ruling
on defendant’s request and to provide “some indication” in
the record of having done so that was sufficient for appellate
400 State v. Hightower
review. In Hightower I, we made it clear that a trial court
“may reasonably deny [a midtrial motion to proceed pro se]
if it has reason to conclude that granting the motion would
result in disruption of the proceedings.” 361 Or at 418. On
the record here, the trial court had ample reason to reach
that conclusion on remand, and it did so. The errors the
majority now identifies in the trial court’s initial decision
and its decision on remand are different from anything that
the court said in Hightower I.
Third, the focus of the majority’s explanation for
why the trial court’s ruling on remand should be reversed—
that it was unfair to defendant because, had the trial court
exercised its discretion in the first place, defendant might
have “respond[ed] to the trial court’s concerns about his
disruptive behavior,” 368 Or at 393—does not sufficiently
take into account what this court did, and did not, say in
Hightower I or the record before the trial court. As noted,
this court’s opinion in Hightower I contains no hint that
the trial court—either in its initial ruling during trial or
on remand—needed to give the defendant another chance
to follow court orders during trial, warn him again of what
consequences might be imposed if disruptive conduct continued, or explain ahead of time how the court would exercise its discretion if defendant’s behavior did not improve.
Indeed, in that opinion, we observed that during trial the
court already had threatened to remove defendant for his
disruptive behavior, 361 Or at 414, without effect. And the
requirement of “some indication” in the record that the trial
court had actually exercised discretion—which this court
in Hightower I said was missing, id. at 421-22—was linked
not to encouraging future improved conduct on the part of
defendant, but rather to facilitating appellate review. See id.
at 421.
The record below clearly indicates that it was
highly unlikely that defendant’s disruption of the trial, his
objectionable treatment of witnesses, and general noncompliance with the trial court’s efforts to conduct an
orderly and expeditious proceeding would have changed if
the trial court had exercised discretion when it made its initial ruling. The trial court’s order on remand surveys defendant’s inappropriate behavior at trial: his “bullying” and
Cite as 368 Or 378 (2021) 401
interruption of witnesses, such as the three “vulnerable,
suggestable young women” that he allegedly prostituted;
his repeated interruptions of his lawyer; his consistent raising of “irrelevant issues and nonexistent principles of law,”
and his general lack of restraint and civility. The trial court
order and record demonstrate that defendant was unable or
unwilling to comply with the court’s directives during trial,
despite repeated requests and warnings. The trial court’s
determination on remand that, applying the standard we
articulated in Hightower I, he would have denied defendant’s
midtrial request to proceed pro se was consistent with our
remand and not an abuse of discretion.
For the reasons set out above, I respectfully dissent.
Garrett, J., joins in this dissenting opinion.
