State v. Hightower

412 April 27, 2017 No. 25

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

GREGORY LEON HIGHTOWER,

aka Gregory Leon Hightower, Sr.,

Petitioner on Review.

(CC 120632737; CA A154220; SC S063924)

On review from the Court of Appeals.*

Argued and submitted September 23, 2016.

Ernest G. Lannet, Chief Defender, Salem, argued the

cause and filed the briefs for petitioner on review.

Erin K. Galli, Assistant Attorney General, Salem, argued

the cause and filed the brief for respondent on review.

Before Balmer, Chief Justice, and Kistler, Walters,

Landau, Brewer, and Nakamoto, Justices.**

LANDAU, J.

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.

Case Summary: In a criminal prosecution, the trial court denied defendant’s

mid-trial motion to represent himself. The Court of Appeals affirmed the denial

of that motion and defendant petitioned for review. Held: (1) when a defendant

attempts to exercise the constitutional right to self-representation after trial has

begun, the trial court has discretion to grant or deny that motion; and (2) because

the trial court erroneously stated that it had no discretion to allow defendant to

represent himself mid-trial, it erred in denying defendant’s motion.

The decision of the Court of Appeals is reversed. The judgment of the trial

court is reversed.

______________

**  Appeal from Multnomah County Circuit Court, Edward J. Jones, Judge.

275 Or App 287, 364 P3d 29 (2015).

**  Baldwin, J., retired March 31, 2017, and did not participate in the decision

of this case.

Cite as 361 Or 412 (2017) 413

LANDAU, J.

The issue in this case is the scope of a criminal defen-

dant’s right to self-representation when that right is invoked

in the middle of trial. We hold that, although Article I, sec-

tion 11, of the Oregon Constitution establishes a criminal

defendant’s right to represent himself or herself in a crim-

inal proceeding, the right is not unqualified. In particular,

when the right is asserted well after trial commences, the

trial court retains discretion to weigh its exercise against

the constitutional obligation to preserve the integrity and

fairness of the proceeding, as well as the court’s interest in

ensuring an orderly and expeditious trial. If a trial court

exercises that discretion to deny a defendant’s motion for

self-representation, it should make a record that reflects

how it exercised that discretion.

In this case, the trial court concluded that defen-

dant had no right to seek self-representation mid-trial.

The Court of Appeals affirmed on the ground that the trial

court’s decision reflected an “apparent” concern about poten-

tial disruption of the trial and, because of that concern, did

not amount to an abuse of discretion. State v. Hightower,

275 Or App 287, 293, 364 P3d 29 (2015). We conclude that

the trial court erred as a matter of law in concluding that

a defendant may not assert the right to self-representation

once trial has commenced. Accordingly, we reverse the deci-

sions of the trial court and Court of Appeals and remand to

the trial court for further proceedings.

The relevant facts are not in dispute. Defendant was

charged with a number of sex offenses, based on evidence

that he sexually abused a 16-year-old girl and forced her

and her 18-year-old step-sister into prostitution. Defendant

asked for court-appointed counsel, and the court granted

the request.

Defendant was less than enthusiastic about his

court-appointed counsel. He asked the court to replace the

lawyer several times, but, each time, the court declined,

explaining that defendant’s various complaints about his

lawyer amounted to disagreements about trial strategy.

414 State v. Hightower

During the first three days of the trial itself,

during the state’s case-in-chief, defendant repeatedly com-

plained about defense counsel’s actions, questioning his

performance, instructing him to ask further questions, and

attempting to object to witness testimony. The trial court

responded by telling defendant to be quiet and twice warn-

ing that it would send defendant out of the courtroom if he

did not stop objecting.

On the fourth day of trial, defendant stated that he

wished to represent himself so that he could present evi-

dence that counsel had refused to offer. The trial court did

not rule on his request to represent himself, responding,

“It’s the lawyer’s job to decide what evidence is presented.

So it’s [defense counsel’s] call. * * * He gets to decide.” Later

that day, defendant again moved to represent himself; the

trial court again denied defendant’s motion, saying, “All

right. Here’s the thing, * * * you don’t change horses in the

midstream. And even though you have a right in some sense

under some circumstances to defend yourself, in the middle

of a trial I’m not going there.” When defense counsel argued

that “one of his rights is if he wants to represent himself, he

gets that right,” the trial court responded, “Well, actually

not.” The court told defendant, “I understand you’re asking

at this point to get rid of [defense counsel] and take over the

defense of the case on your own. I’m denying you that right

to do that.”

Later, defendant renewed his motion to represent

himself. Defense counsel asked the court to “make a clearer

ruling” and the court again denied the motion. When defense

counsel pressed the court for a reason, 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.”

Defense counsel again argued that “in the absence of a find-

ing that removing me would be disruptive, I think the court

has an absolute obligation to do so.” The court again denied

the motion, saying, “[W]e’ll have to disagree on that, then.

Cite as 361 Or 412 (2017) 415

I’m confident that despite [defendant’s] desires, he’s not

actually in a position to represent himself, so I’m going to

deny that motion.”

The state rested, and defense counsel moved for

judgment of acquittal, at which point defendant again

interjected with his own reasoning. Counsel again asked

the court to allow defendant to represent himself. Counsel

argued that defendant “would be best served if you allowed

him to represent himself, and the disruptions to the Court

would be significantly diminished if not completely elimi-

nated.” Again, the court denied the motion, saying “Well,

I’m not going to.”

Defendant was ultimately convicted on seven counts

and sentenced on each count to life in prison without the

possibility of parole pursuant to ORS 137.719.

Defendant appealed, arguing that the trial court

erred in denying his motions for self-representation. At

the least, defendant argued, the court erred in denying his

requests in the absence of findings that, for instance, allow-

ing him to represent himself would be disruptive. The Court

of Appeals affirmed. The court explained that the Article I,

section 11, right to self-representation is not unqualified.

Hightower, 275 Or App at 292. Among other things, the

Court of Appeals said, a trial court may decline to grant

a motion for self-representation if it determines that the

decision to waive the right to counsel is not “intelligent and

understanding” or if it would result in “disruption of the

orderly conduct of the trial.” Id. In this case, the Court of

Appeals noted that, although the trial court had categor-

ically rejected the notion that a defendant could “change

horses in the midstream,” the court also had previously

threatened to remove defendant for his disruptive behavior.

Id. at 293. “Thus, it is apparent,” the Court of Appeals com-

mented, “that the court’s overriding concern was that grant-

ing defendant’s self-representation request in the middle of

trial would have disrupted the orderly conduct of the pro-

ceedings.” Id. As a result, it concluded that the trial court

did not abuse its discretion in denying defendant’s motion.

Id. at 294.

416 State v. Hightower

On review, defendant argues to this court that the

Court of Appeals erred. Defendant acknowledges that, at

least once trial has begun, the right to self-representation

is “not absolute.” He nevertheless contends that, as a matter

of law, a trial court is required to grant a request for self-

representation unless defendant has engaged in “[d]eliber-

ate and serious” interference with counsel’s representation

or “serious misconduct that thwarts the progression of trial.”

At the least, defendant argues, the trial court cannot deny a

motion for self-representation without making findings that

enable a reviewing court to determine whether there was an

appropriate exercise of discretion.

For its part, the state contends that a criminal

defendant must choose whether to be represented by coun-

sel or to self-represent. By choosing one, the state asserts,

the defendant necessarily relinquishes the other. Moreover,

the state argues that a criminal defendant must make that

choice before trial begins. In the state’s view, Article I, sec-

tion 11’s purpose of “allowing the defendant a choice of how

to present his defense at trial * * * can be fully vindicated

only if it is exercised before trial.” At best, the state argues,

if the right of self-representation is not asserted until after

trial has begun, a trial court’s decision to deny the right is

reviewed for an abuse of discretion. In this case, the state

concludes, given defendant’s prior disruptive behavior, the

trial court did not abuse its discretion in denying his motion

to represent himself.

Article I, section 11, enumerates a number of rights

that attach “[i]n all criminal prosecutions.” Among those

rights is that the accused is entitled “to be heard by himself

and counsel.” This court has long held that the right “to be

heard by” oneself includes the right to self-representation at

trial. As explained in State v. Butchek, 121 Or 141, 153, 253 P

367 (1927), “[t]he Constitution guarantees to a defendant the

right to be heard by himself and counsel, but it does not force

counsel upon him.” See also Johnson v. Premo, 355 Or 866,

872, 333 P3d 288 (2014) (“[A]n individual litigant generally

has the right to represent himself or herself in court.”).

The right to self-representation is the counterpart

to the right to be represented by counsel at trial. See State

Cite as 361 Or 412 (2017) 417

v. Rogers, 330 Or 282, 297, 4 P3d 1261 (2000) (“The Oregon

Constitution establishes that right in conjunction with the

right to be heard by counsel.”). That is to say, the two rights

are mutually exclusive. See State ex rel Ott v. Cushing, 289 Or

705, 709, 617 P2d 610 (1980) (“[T]he right of a defendant to

the assistance of counsel carries with it the correlative right

to dispense with such assistance.”). The accused in a crimi-

nal trial has a choice either to be represented by counsel or

to represent himself or herself. Article I, section 11, does not

grant a right to so-called “hybrid representation.” State v.

Stevens, 311 Or 119, 124-25, 806 P2d 92 (1991) (“[A] defen-

dant has no constitutional right to hybrid representation.”).

It necessarily follows that, by asserting the right to

counsel, a defendant waives the right to self-representation.

And, by waiving the right to counsel, a defendant necessar-

ily asserts the right to self-representation. See, e.g., State v.

Langley, 351 Or 652, 665, 273 P3d 901 (2012) (“A defendant

may also elect to waive his or her right to counsel and pro-

ceed pro se.”). That is precisely why a valid waiver of the

right to counsel must be preceded by a warning concern-

ing the “dangers and disadvantages of self-representation.”

State v. Meyrick, 313 Or 125, 133, 831 P2d 666 (1992). In

that sense, the state is correct in characterizing the rela-

tionship between the rights.

But that does not mean that, once the right to coun-

sel or the right to self-representation has been invoked, the

correlative right has been forever relinquished. Nothing

prevents a defendant who has invoked the right to counsel

or the right to self-representation from later waiving that

right. E.g., State v. Turnidge, 359 Or 364, 400, 374 P3d 853

(2016) (nothing prevents a suspect from waiving a previ-

ously asserted right to counsel).

That said, the right to waive is not absolute and

unqualified. For one thing, a waiver of the Article I, section

11, right to counsel or to self-representation must be know-

ing and voluntary. Meyrick, 313 Or at 133. For another, the

timing of a defendant’s waiver matters. In particular, once a

trial has begun, a number of interests other than the defen-

dant’s Article I, section 11, rights come into play. Among

those are the trial court’s overriding obligation to ensure the

418 State v. Hightower

fairness and integrity of the trial and its inherent authority

to conduct proceedings in an orderly and expeditious man-

ner. See ORS 1.010(3) (every court of justice has power “[t]o

provide for the orderly conduct of proceedings before it”). As

this court explained in Rogers,

“A trial court’s authority to exercise reasonable discretion

to ensure that the trial is orderly and expeditious does

not evaporate when the parties assert their constitutional

rights during trial. * * * Rather a trial court is obliged to

accommodate the exercise of all pertinent constitutional

and statutory rights by all parties within the context of

an orderly and expeditious trial. * * * Nothing in the text

of Article I, section 11, suggests that the framers intended

that a defendant’s right to be heard ‘by himself’ should

override the court’s authority and responsibility to conduct

the trial as an orderly and expeditious proceeding.”

330 Or at 301 (internal citations omitted); see also State v.

Harrell/Wilson, 353 Or 247, 261, 297 P3d 461 (2013) (not-

ing that “[t]rial courts generally possess broad discretion

to ensure that the proceedings before them are orderly and

expeditious” in considering a defendant’s mid-trial waiver

of right to a jury trial). In light of those additional interests

that are triggered by the commencement of trial, any invo-

cation of the right to counsel or to self-representation that

occurs after that time is subject to the court’s discretion.

Id.; see also State v. Langley, 314 Or 247, 258, 839 P2d 692

(1992) (ruling on substitution of counsel motion reviewed for

abuse of discretion).

In short, if a defendant who has previously asserted

the right to counsel waits until well into the conduct of trial

to attempt to waive that right and proceed pro se, he or she

has not necessarily relinquished permanently the right

to self-representation, as the state suggests. But the trial

court’s decision concerning the defendant’s request is sub-

ject to appellate review for an abuse of discretion, in light of

all other relevant interests that come into play at the com-

mencement of trial. For example, a trial court may exercise

its discretion to deny a motion for self-representation that is

conditioned on the grant of a continuance. Or it may reason-

ably deny the motion if it has reason to conclude that grant-

ing the motion would result in disruption of proceedings.

Cite as 361 Or 412 (2017) 419

We note in passing that our conclusion in that

regard is consistent with the nearly uniform view of other

courts that have addressed the matter—state and federal.

All but a few state constitutions include the same guarantee

of a right to self-representation that is contained in Article I,

section 11. See Stevens, 311 Or at 124 (so noting). And the

uniform view among courts interpreting those state consti-

tutional guarantees is that a mid-trial assertion of the right

of self-representation is reviewed for an abuse of discretion,

in light of the other interests that a trial court is obligated

to take into account once trial has commenced.1

1

See, e.g., Upshaw v. State, 992 So 2d 57, 61 (Ala Crim App 2007) (right of

self-representation becomes qualified once trial commences); Brewer v. State,

55 P3d 749, 753 (Alaska Ct App 2002) (a judge “may deny a defendant’s last-

minute request for self-representation when granting the request would neces-

sarily delay the trial and the tardiness of the request is due to the defendant’s

lack of diligence in pursuing the issue of self-representation”); State v. Lamar,

205 Ariz 431, 436, 72 P3d 831, 836 (2003), supplemented, 210 Ariz 571, 115

P3d 611 (2005) (request is considered timely if it is made “before meaningful

trial proceedings have commenced”); People v. Lynch, 50 Cal 4th 693, 722, 237

P3d 416, 437 (2010) (abuse of discretion standard for motion made after trial

begins); People v. Vialpando, 954 P2d 617, 620 (Colo App 1997) (if request is not

made in a timely fashion, court must “determine whether the request is made

for purposes of delay or to gain tactical advantage, and whether the lateness of

the request may hinder the administration of justice”); State v. Pires, 310 Conn

222, 253, 77 A3d 87, 107 (2013) (abuse of discretion standard); Williams v. State,

56 A3d 1053, 1055-56 (Del 2012) (“After a trial has begun, the right of self-

representation may be curtailed, and the trial judge considering the motion must

weigh the legitimate interests of the defendant against the prejudice that may

result from the potential disruption of the proceedings already in progress.”);

McCray v. State, 71 So3d 848, 870 (Fla 2011) (abuse of discretion standard for

motion made after trial begins); Tyner v. State, 334 Ga App 890, 893, 780 SE2d

494, 498 (2015) (allowing self-representation mid-trial if waiver of right to coun-

sel is knowing and voluntary); State v. Reber, 138 Idaho 275, 278, 61 P3d 632,

634-35 (Ct App 2002) (abuse of discretion standard); People v. Burton, 184 Ill 2d

1, 24, 703 NE2d 49, 60 (1998) (same); Stroud v. State, 809 NE2d 274, 279 (Ind

2004) (holding that “request [to proceed pro se] must be clear and unequivocal,

and it must be [made] within a reasonable time prior to the first day of trial”);

State v. Wehr, 852 NW2d 495, 501 (Iowa Ct App 2014) (request made prior to the

jury being impaneled was timely); State v. Collins, 257 Kan 408, 415, 893 P2d

217, 221 (1995) (abuse of discretion standard for motion made after trial began);

Swan v. Com, 384 SW3d 77, 94 (Ky 2012) (request made one week before trial

was timely); State v. Brown, 342 Md 404, 415, 676 A2d 513, 518 (1996) (abuse

of discretion standard); Com v. Chapman, 8 Mass App Ct 260, 265, 392 NE2d

1213, 1217 (1979) (request is timely if made before jury is empanelled); State v.

Blom, 682 NW2d 578, 613 (Minn 2004) (balancing test required if request is

made after trial begins); State v. Black, 223 SW3d 149, 153 (Mo 2007) (requir-

ing timely assertion of right); Watson v. State, 130 Nev Adv Op 76, 335 P3d 157,

171 (2014) (request is timely if it “is clear that the request comes early enough to

allow the defendant to prepare for trial without need for a continuance”); State

v. Sweeney, 151 NH 666, 671, 867 A2d 441, 448 (2005) (timeliness of motion is

420 State v. Hightower

The United States Supreme Court recognized a

similar right to self-representation implicit in the Sixth

Amendment in Faretta v. California, 422 US 806, 814, 95 S

Ct 2525, 45 L Ed 2d 562 (1975). Since Faretta was decided,

most federal appellate courts likewise have concluded that

a trial court’s disposition of a mid-trial request for self-

representation is reviewed for an abuse of discretion.2

not dispositive in ruling on defendant’s motion); State v. Garcia, 149 NM 185,

194, 246 P3d 1057, 1066 (NM 2011) (reviewing denial of request made during

trial for abuse of discretion); State v. Torkelsen, 2008 ND 141 ¶ 43, 752 NW2d

640, 655 (2008) (same); Naum v. State, 1981 OK CR 76, 630 P2d 785, 788 (1981)

(same); Com v. Brooks, 628 Pa 524, 539, 104 A3d 466, 475 (2014) (same); State v.

Winkler, 388 SC 574, 586, 698 SE2d 596, 602 (SC 2010) (same); State v. Hester,

324 SW3d 1, 30-31 (Tenn 2010) (requiring timely invocation of right); O’Brien

v. State, 482 SW3d 593, 622 (Tex App-Houston 2015), petition for discretionary

rev granted (May 4, 2016) (abuse of discretion standard for motion after trial

has begun); State v. Bean, 171 Vt 290, 297, 762 A2d 1259, 1264 (2000) (same);

Thomas v. Com, 260 Va 553, 559, 539 SE2d 79, 82 (2000) (same); State v. Brown,

177 W Va 633, 638, 355 SE2d 614, 619 (1987) (same); Hamiel v. State, 92 Wis 2d

656, 673, 285 NW2d 639, 649 (1979) (same); Scott v. State, 2012 WY 86, ¶ 16,

278 P3d 747, 753 (2012) (same).

2

See, e.g., United States v. Zhen Zhou Wu, 711 F3d 1, 33 (1st Cir 2013) (“A

district court considering a mid-trial request to proceed pro se must balance the

legitimate interests of the defendant in self-representation against the potential

disruption of the proceedings already in progress. ” (Internal quotation marks

omitted.)); United States v. Walker, 142 F3d 103, 108 (2d Cir 1998) (once trial

has begun, court must balance defendant’s interests against the integrity of pro-

ceedings); United States v. Bankoff, 613 F3d 358, 373 (3d Cir 2010) (mid-trial

request to proceed pro se left to trial court’s discretion); United States v. Barefoot,

754 F3d 226, 233 (4th Cir 2014) (“Once trial has begun under the stewardship

of counsel, the necessity that it proceed efficiently, without inconvenience, delay,

or confusion of the jury,” gives the trial court discretion to deny a motion to pro-

ceed pro se.); United States v. Sanders, 843 F3d 1050, 1054 (5th Cir 2016) (“[T]he

right to self-representation is limited by the trial court’s responsibility to prevent

delay and other obstructionist behavior.”); United States v. Powell, 847 F3d 760,

774 (6th Cir 2017) (“A defendant must assert the right to self-representation * * *

in a timely manner, and ‘courts will balance any such assertion against consid-

erations of judicial delay.’ ”); United States v. Kosmel, 272 F3d 501, 506 (7th Cir

2001) (“[O]nce trial commences, the district court retains discretion to balance

the interests of the defendant against the potential disruption of the proceedings

already in progress.”); United States v. Wesley, 798 F2d 1155, 1155-56 (8th Cir

1986) (“Once trial commences, that right is subject to the trial court’s discretion

which requires a balancing of the defendant’s legitimate interests in representing

himself and the potential disruption and possible delay of proceedings.”); Burton

v. Davis, 816 F3d 1132, 1144 (9th Cir 2016) (“A motion made after [trial com-

mences] is addressed to the sound discretion of the trial court.”); United States v.

Tucker, 451 F3d 1176, 1183 (10th Cir 2006); United States v. Young, 287 F3d 1352,

1354 (11th Cir 2002); United States v. Washington, 353 F3d 42, 46 (DC Cir 2004).

See generally John F. Decker, The Sixth Amendment Right to Shoot Oneself in the

Foot: An Assessment of the Guarantee of Self-Representation Twenty Years After

Faretta, 6 Seton Hall Const. L.J. 483 (1996) (collecting cases).

Cite as 361 Or 412 (2017) 421

Two additional matters deserve mention: First, the

record must include some indication of how the trial court

actually weighed the relevant competing interests involved

for an appellate court to be able to determine whether the

trial court abused its discretion in ruling on a request to

waive the right to counsel and proceed pro se. As this court

explained in State v. Guzek, 358 Or 251, 269, 363 P3d 480

(2015), “[appellate] review is better facilitated by a record

of findings that is direct, express, and clearly delineated.”

Nevertheless, such express findings are not required, so

long as the record reveals the reasons for the trial court’s

actions. Id. It is not sufficient that an appellate court may

be able to speculate about what might have been the trial

court’s rationale for its decision.

Second, although the trial court’s decision in

response to a request for self-representation is ordinarily

a matter of discretion, in some cases, that decision may be

predicated on certain subsidiary determinations—either

findings of fact or conclusions of law—that trigger their

own standards of review. See Oakmont, LLC v. Dept. of Rev.,

359 Or 779, 789, 377 P3d 523 (2016) (“In reviewing a rul-

ing for abuse of discretion, it can be important to distin-

guish the factual and legal issues that underlie an agency

or a trial court’s exercise of discretion.”). So, for example, if

a court’s decision as to whether to grant a request for self-

representation turns on the court’s legal conclusions as to

the scope of the right, that determination is reviewed for

errors of law. See State v. Sarich, 352 Or 601, 615, 291 P3d

647 (2012) (legal determinations that are predicates for the

exercise of discretion are reviewed for errors of law).

With the foregoing principles in mind, we turn to

the trial court’s decision in this case. The court’s comments

in response to defendant’s motion reflect an understand-

ing that, once trial commenced, defendant had forfeited

the right to waive his right to counsel and proceed pro se.

When defendant moved to represent himself, the trial court

replied, “Here’s the thing, * * * you don’t change horses in

the midstream.” When defense counsel insisted that “one of

[defendant’s] rights is if he wants to represent himself, he

gets that right,” the trial court responded, “Well, actually

422 State v. Hightower

not.” The court told defendant, “I understand you’re asking

at this point to get rid of [defense counsel] and take over the

defense of the case on your own. I’m denying you that right

to do that.” Later in the trial, when defendant renewed his

motion, defense counsel asked the court to “make a clearer

ruling,” and the court again denied the motion. When defense

counsel pressed the court for a reason, the court responded,

“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.”

Those statements do not reflect an exercise of dis-

cretion or any finding that granting the motion would sig-

nificantly delay or disrupt the trial. Rather, as we have

noted, they appear to reflect an impression that the law sim-

ply 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.

The state argues that, given the stage of the pro-

ceedings and defendant’s prior record of disruptive behav-

ior, “the trial court reasonably could have” determined that

the interest in orderly and expeditious trial outweighed any

prejudice to defendant’s right to self-representation. But 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 reason-

able exercise of its discretion.

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.