State v. Peltier , 318 Or. App. 267 ( 2022 )

267
Argued and submitted December 22, 2020, reversed and remanded for a new
trial March 16, petition for review denied July 28, 2022 (370 Or 197)
STATE OF OREGON,
Plaintiff-Respondent,
v.
CHRISTOPHER JOSEPH PELTIER,
Defendant-Appellant.
Washington County Circuit Court
18CR46418; A169723
508 P3d 567
In this criminal case, defendant appeals from a judgment of conviction for
fourth-degree assault, ORS 163.160. He challenges the trial court’s conclusion
that he waived his right to be present at trial when he remained silently in his
cell during pretrial hearings. Held: The Court of Appeals concluded that there
was insufficient evidence to support a determination that, at the time of the pur-
ported waiver, defendant knowingly waived his right to be present at trial. A
knowing waiver of the right to be present required, at least, that defendant under-
stood that trial would proceed without him, and the risks and consequences asso-
ciated with that absence. Here, the record did not support that such information
had been fully and accurately conveyed to defendant. Accordingly, the trial court
erred in concluding that defendant validly waived his right to be present at trial.
Reversed and remanded for a new trial.
Theodore E. Sims, Judge.
Sara F. Werboff, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Lauren P. Robertson, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
SHORR, J.
Reversed and remanded for a new trial.
268 State v. Peltier
SHORR, J.
In this criminal appeal, we must determine whether
defendant, who was silent and unresponsive to attempts at
communication from his attorney and jail staff, waived his
right to be present at trial. We conclude that there was insuf-
ficient evidence for the trial court to decide that defendant
intentionally and knowingly waived his right to be present.
Therefore, we reverse and remand for a new trial.
The relevant facts are largely procedural and, for
purposes of this appeal, undisputed. Defendant was arrested
and charged with fourth-degree assault. Defendant was
appointed counsel and held in custody. Following his
arraignment, defendant did not attend any pretrial hear-
ings. The trial court ordered defendant released, but he
did not respond to jail deputies’ requests for him to sign
the release agreement. As a result, he stayed in custody.
While in custody, defendant refused his appointed counsel’s
attempts to visit him in the jail. Defense counsel learned
from jail deputies that defendant was unresponsive and
spent the majority of his time in silence. Defendant was
also housed in the jail’s Medical Observation Unit. Because
of defendant’s behavior in the jail, defense counsel moved
for a determination of defendant’s fitness to proceed. In a
supporting affidavit, defense counsel explained that defen-
dant’s previously appointed attorneys had raised the same
concerns about defendant’s behavior. In response to those
earlier concerns, the court had ordered an evaluation and
had found defendant able to aid and assist.
The trial court granted the motion for another eval-
uation of defendant’s ability to aid and assist and commit-
ted defendant to the Oregon State Hospital for a 30-day
examination period. At the state hospital, Dr. Best eval-
uated defendant. In her written report to the court, Best
opined that defendant was capable of aiding and assisting
in his own defense. According to the report, defendant was
unresponsive during his interview, so Best’s conclusions
were based on “collateral information,” including records of
defendant’s previous hospitalizations and evaluations and
discussions with hospital staff. Best wrote that defendant
had a history of hospitalization, self-harming behaviors,
Cite as 318 Or App 267 (2022) 269
mental health concerns related to his unresponsiveness in
jail, and that defendant had been placed on suicide watch
several times. However, jail records also demonstrated
defendant’s “ability to socially engage with others in an
appropriate manner when making requests for assistance
or desired items.” According to Best, “During all of his OSH
hospitalizations, malingering has either been fully diag-
nosed or suspected.” Ultimately, Best concluded that defen-
dant’s unresponsiveness “was willful and volitional” rather
than the result of a qualifying mental disorder. Based on
Best’s report, the court found defendant able to aid and
assist.
Several weeks before trial, defense counsel renewed
her motion for a determination of defendant’s fitness to pro-
ceed, on the ground that defendant remained unrespon-
sive and would “stare blankly at the wall of his jail cell”
when asked to visit with his attorney. During a “cell-side”
visit, defendant lay on his cot without moving or responding
while his defense counsel attempted to engage with him for
“approximately twenty minutes.”
The morning of trial, jail deputies informed the
court that defendant was unresponsive and would not leave
his cell. Noting that her renewed aid and assist motion was
still pending before the court, defense counsel argued that
his absence was not volitional, and that defendant was not
competent to stand trial. The court denied the motion, con-
cluding that defendant was “remarkably stubborn” and was
“making a voluntary choice not to cooperate, as opposed to
being mentally unable to do so.”
The court next addressed defendant’s absence from
trial. Defense counsel objected to trying defendant in absen-
tia but did not want defendant forcibly brought to the court.
Officer Danner, who was responsible for arranging defen-
dant’s transportation to court, was present in the courtroom.
The court spoke with Officer Danner about how to proceed.
“THE COURT: I think we need to give an effort. * * *
[W]e just need to make it clear to him that, if he doesn’t
come, that the proceedings are going to continue in his
absence. Maybe he’ll rethink the matter.
270 State v. Peltier
“OFFICER DANNER: Regarding that, Judge, would
you like us to verbally tell him that and then attempt to
bring him over if he doesn’t resist us carrying him in?
“* * * * *
“THE COURT: I have concluded that there is no point
in having jail staff drag him over here if he doesn’t want to
join us.
“So what we need to do is establish on the record that
he has been invited to join the proceedings and that he’s
chosen not to participate.”
The court then directed Danner to do the following:
“THE COURT: Let’s have him contacted again and
specifically told that the trial needs to proceed, that he has
every right to participate, that we’re more than happy to
bring him over without any physical exertion on his part if
he should choose not to walk or do anything else. All he has
to do is nod his head and tell us that he wants to come.”
During a brief recess, Danner spoke with Deputy
Star, who worked in the Medical Observation Unit where
defendant was held. Danner reported to the court that he
asked Star to “inform [defendant] that we are proceeding
with trial, he has an absolute right to be here, if he wanted
us to come get him, we would be more than happy to do so
* * *.” Danner was sworn in as a witness. Danner testified
that Star relayed that message to defendant, but defendant
did not respond to Star and stared at his cell wall. Danner
also provided the following testimony in response to the
court’s questions.
“THE COURT: * * * So tell us what [defendant] has
said and done that would cause you to believe or disbelieve
that he wishes to be here or not be here.
“[OFFICER DANNER]: Well, starting at 8:00 this
morning, Deputy Harm and I were tasked with bringing
[defendant] here to court for the purposes of trial.
“At approximately 9:00 a.m., I approached his cell in
Medical Observation Unit * * *. I opened the door and spoke
to—or I should say spoke at [defendant] regarding his right
to be here, and we’re more than willing to bring him over
safely and securely.
Cite as 318 Or App 267 (2022) 271
“He did look at me. He was awake and alert, but he did
not respond to any of my—to anything I said to him.
“At which point I gave him a couple more chances to
acknowledge and participate, at which point in time he just
continued laying on his mattress.
“THE COURT: Did he make eye contact with you?
“[OFFICER DANNER]: He did make eye contact with
me.
“THE COURT: All right. Any indication that he had
any trouble hearing you?
“[OFFICER DANNER]: No.
“THE COURT: Were there any other communica-
tion[s] on any subject today where you got a response from
him?
“[OFFICER DANNER]: Where I got a response, no.
“THE COURT: Where other jail staff got a response
from him?
“[OFFICER DANNER]: Yes, Judge. Earlier in the day,
Deputy Josh Star, who is currently assigned and working
in the Medical Observation Unit, asked [defendant] if he
wanted to come out of his cell. We refer to it at the jail as
‘out time.’ It’s an opportunity for them to recreate, shower,
take care of any * * * business that they may do.
“[Defendant] responded with a head nod in the negative.
So his head would be going left to right as indicating no.”
The court asked Danner several more questions relating to
defendant’s ability to move and walk, and his habits in the
jail. Danner confirmed that defendant was physically able to
walk around, that he was eating meals, and that he did not
need assistance with basic functioning.
Following Danner’s testimony, the court concluded
that defendant was “simply refusing to participate” and indi-
cated that it would proceed with trial in defendant’s absence.
Both defense counsel and the state objected. In explaining
its decision, the court made the following findings.
“THE COURT: I think we’re splitting hairs here. He’s
told he can come. He’s making no effort to do so. He’s had
272 State v. Peltier
multiple evaluations, and the professional medical psychi-
atric conclusion has been that he suffers not from mental
illness but from a severe case of stubbornness, which is
his right. He doesn’t have to participate, but he is able to
participate.
“And I think, under these circumstances, we don’t have
much choice but to proceed in his absence.”
The case proceeded to trial, and defendant was convicted by
a jury of fourth-degree assault. Defendant appeals from the
resulting judgment of conviction.
On appeal, defendant contends that the court
erred in concluding that defendant validly waived his right
to be present at trial by remaining silently in his cell. In
response, the state argues that defendant forfeited his right
to be present by engaging in misconduct, or in the alter-
native, impliedly waived his right to be present when he
willfully ignored the deputies’ attempts to bring him to
trial. Whether a defendant has knowingly and intentionally
waived his right to be present at trial is a question of law
that we review for legal error. State v. Langley, 351 Or 652,
666, 273 P3d 901 (2012) (describing standard for waiver of
right to counsel); State v. Jacobson, 296 Or App 87, 91-92,
437 P3d 243 (2019) (explaining that same principles apply
to waivers of right to counsel as to waivers of right to be
present).
As a preliminary matter, defendant makes his
argument under both Article I, section 11, of the Oregon
Constitution and the Sixth Amendment to the United States
Constitution.1 Defendant and the state cite caselaw under
both constitutional provisions. We proceed under Article I,
section 11. To the extent we rely on cases applying the Sixth
1
Article I, section 11, provides, in part:
“In all criminal prosecutions, the accused shall have the right to public trial
by an impartial jury in the county in which the offense shall have been com-
mitted; to be heard by himself and counsel[.]”
The federal constitutional right to be present at trial derives from the
Confrontation Clause of the Sixth Amendment. Illinois v. Allen, 397 US 337,
338, 90 S Ct 1057, 25 L Ed 2d 353 (1970). The Confrontation Clause of the Sixth
Amendment provides, in relevant part:
“In all criminal prosecutions, the accused shall enjoy the right * * * to be con-
fronted with the witnesses against him[.]”
Cite as 318 Or App 267 (2022) 273
Amendment, those cases merely inform our general under-
standing of the principles associated with the right to be
present at trial.
“A criminal defendant’s right to appear at trial is a
fundamental constitutional right.” Jacobson, 296 Or App at
91. However, “the right of the defendant to appear at trial
may be waived.” Id. “Like the waiver of the right to counsel,
the waiver of the right to appear at trial must be an inten-
tional relinquishment of a known right, based on what the
defendant knows and understands.” Id. at 91-92. Whether
there has been an “intentional relinquishment or abandon-
ment of a known right or privilege will depend on the partic-
ular circumstances of each case, including the defendant’s
age, education, experience, and mental capacity” as well as
the charge, possible defenses, and other relevant factors.
State v. Meyrick, 313 Or 125, 132, 831 P2d 666 (1992).
In Jacobson, we explained that the same principles
apply to waivers of the right to be present as to waivers of
the right to counsel. Accordingly, a valid waiver of the right
to be present has two components. The “ ‘intentional’ com-
ponent of a waiver * * * refers to the defendant’s intent to
waive the right.” Jacobson, 296 Or App at 92. “Encompassed
within the ‘intentional’ component is the requirement that
the choice must be ‘voluntary.’ ” Meyrick, 313 Or at 132 n 8.
Generally, “in the absence of coercion, most intentional acts
are voluntary acts.” Jacobson, 296 Or App at 92.
The “ ‘known right’ component of a waiver ‘refers to
the defendant’s knowledge and understanding of the right.’ ”
Id. at 94 (quoting Meyrick, 313 Or at 132 n 8). Whether a
waiver is knowing “is the more expansive of the two compo-
nents, because a defendant’s knowledge and understanding
of the right to counsel” or the right to be present “may turn
on factors other than what the defendant tells the court,
such as the defendant’s age and education.” Id. at 94-95.
To knowingly waive the right to counsel, a defendant must
be aware of the right to counsel and also understand the
risks inherent in self-representation. Applying that princi-
ple to the right to be present, a defendant must be aware of
that right and understand the risks inherent in a trial in
absentia. A “ ‘colloquy on the record between the court and
274 State v. Peltier
the defendant wherein the court, in some fashion, explains
the risks of [the waiver]’ is the preferred method of assuring
that a waiver was made knowingly.” State v. Guerrero, 277
Or App 837, 847, 373 P3d 1127 (2016) (quoting Meyrick, 313
Or at 133). But we will also affirm a trial court’s acceptance
of a defendant’s waiver where, “under the totality of the cir-
cumstances, the record reflects that the defendant knew of
the right [to be present] and understood the risks” associ-
ated with the defendant’s absence at trial. State v. Easter,
241 Or App 574, 584, 249 P3d 991 (2011).
For example, in Jacobson the defendant signed a
waiver of appearance form. The form stated that the defen-
dant was required to appear for all scheduled hearings and
trial and warned the defendant that if he failed to appear,
the trial might proceed in his absence. 296 Or App at 88-89.
The defendant failed to appear for his trial, and the case
was tried to a jury in his absence. Id. at 89. We concluded
that the defendant did not make an intentional and know-
ing waiver. With respect to the known right component we
explained that “[t]he court did not inquire whether defen-
dant understood that, by signing the form, he was agree-
ing that the trial would proceed in his absence if he did not
appear. The court did not explain the impact on defendant’s
other rights if he failed to appear at trial.” Id. at 95. We dis-
tinguished the circumstances from those in another case,
State v. Peters, 119 Or App 269, 850 P2d 393 (1993), where
the defendant signed a conditional release agreement that
provided the trial could proceed in his absence if he failed to
appear. In Peters, the trial court admonished the defendant
that trial could proceed in his absence and explained “the
impact on the defendant’s other rights if he failed to appear
at trial.” Jacobson, 296 Or App at 93 (citing Peters, 119 Or
App at 274). The Peters defendant was also “counseled by his
lawyer about the waiver and expressly acknowledged that
he had been advised against signing it.” Id. In Jacobson, by
contrast, the record did not show that the defendant “signed
the form with knowledge and an understanding of his right.”
Id. at 95.
As noted, the state does not contend there was
express waiver. Nor could it reasonably do so here, where
Cite as 318 Or App 267 (2022) 275
defendant did not speak at all, let alone state a desire to
waive his right. Instead, the state contends that defendant
waived his right to be present by engaging in misconduct,
or in the alternative, that defendant made a valid waiver
by willfully declining to respond to the deputies’ attempts
to bring him to court. That is, the state argues that, even
if we conclude that defendant’s behavior was not miscon-
duct, his conduct constituted an intentional and knowing
waiver. Neither party has cited a case addressing a defen-
dant’s loss of the right to be present due to misconduct
under Article I, section 11, nor could we find any. Because
the relevant principles and analyses are similar, we sum-
marize the following Oregon cases concerning the loss of
the Sixth Amendment right to be present by misconduct.
See Meyrick, 313 Or at 137-38 (reaching same conclusion
under Sixth Amendment and Article I, section 11); Easter,
241 Or App at 586 (same).
A defendant may lose the Sixth Amendment right
to be present by engaging in certain disruptive misconduct
during a trial. In State v. Lacey, the defendant repeatedly
interrupted the court and his appointed attorney during
pretrial hearings and was held in contempt for successive
violations of the court’s orders for the defendant to be quiet
and allow his attorney to speak. 364 Or 171, 174, 431 P3d
400 (2018), cert den, 139 S Ct 1590 (2019). The day before
trial, the defendant’s attorney asked to withdraw as the
defendant’s counsel because the defendant wanted to rep-
resent himself and insisted on raising a defense that had
been rejected at a prior hearing. Id. The trial court encour-
aged the defendant to continue working with his attorney,
and explained that, if the defendant proceeded pro se and
engaged in disruptive conduct like he had during the pre-
trial hearings, he would be removed from the courtroom
and the trial would continue without him or defense coun-
sel. Id. at 175. The trial court also advised the defendant of
the risks of self-representation and the defendant chose to
represent himself. Id. at 176. During the four day trial, the
defendant “repeatedly engaged in misconduct by arguing
with the trial court after it ruled and by failing to abide by
its rulings” and the court reminded the defendant that he
would be held in contempt and removed from the courtroom
276 State v. Peltier
if he continued. Id. On the final day of the trial the defen-
dant again insisted on raising the defense that the court
had previously rejected. The defendant “continuously inter-
rupted the court and became defiant and aggressive.” Id.
After warning him that he would be removed, the trial court
eventually held the defendant in contempt and had him
removed from the courtroom. Id. at 177.
The Oregon Supreme Court explained that a defen-
dant “may lose the right to be present if, after he has been
warned by the judge that he will be removed if he continues
his disruptive behavior, he nevertheless insists on conduct-
ing himself in a manner so disorderly, disruptive, and dis-
respectful of the court that his trial cannot be carried on
with him in the courtroom.” Id. at 185 (internal quotation
marks omitted). The court concluded that, by insisting that
he would violate the court’s order after being warned of the
consequences, the defendant “made a knowing and volun-
tary choice to be removed from the courtroom and leave the
defense table empty.” Id. at 186.
In State v. Menefee, the defendant appeared the
morning of trial without counsel and refused to answer the
court’s questions about whether he wanted appointed coun-
sel or to represent himself. 268 Or App 154, 157, 341 P3d
229 (2014). Instead, he insisted that he was not waiving any
rights and that the court did not have “jurisdiction” over
him. Eventually the court concluded that the defendant was
electing to proceed pro se. Id. The defendant renewed his
argument that the court lacked authority over him multiple
times, and each time the court rejected the argument. Id. at
158-59. The defendant again raised the argument during
his opening statement to the jury and continued over the
court’s attempts to stop him. Id. at 160-62. Outside the
presence of the jury, the defendant insisted that he would
raise his argument again, eventually telling the court that
he was “going to speak * * * until you throw me out of this
courtroom.” Id. at 164. A colloquy between the court and
the defendant then “ultimately devolved into disrespectful
and provocative comments.” Id. The defendant was removed
from the courtroom and the trial resumed in the absence of
the defendant and defense counsel. Id. at 168-69.
Cite as 318 Or App 267 (2022) 277
On appeal, the defendant argued that his conduct
was not sufficiently egregious to warrant removal. We con-
cluded that the defendant’s conduct warranted removal,
because it was disruptive, repeated, and at times abusive. Id.
at 181-82. And, because the defendant “continued to make
the same argument despite the court’s multiple rulings and
admonishments,” and promised to make that argument at
“every opportunity,” the trial court permissibly concluded
that the defendant’s behavior “was aimed at disrupting
the proceedings.” Id. at 178-79. However, we held that the
trial court erred in continuing the trial in the defendant’s
absence, because the defendant “did not forfeit his right to
representation when he acted out, and the trial court failed
to obtain defendant’s waiver of that right.” Id. at 185.
Explaining the different outcomes in Lacey and
Menefee, the Lacey court distinguished Menefee, noting that
the defendant in Menefee was not warned that the trial would
proceed in his absence. Therefore, the court explained, the
Menefee defendant’s waiver “may not have been knowingly
made, in that he may not have been aware of a critical con-
sequence of the waiver.” Lacey, 364 Or at 187.
With respect to Article I, section 11, the Oregon
Supreme Court has held that a defendant may waive the
right to counsel by engaging in misconduct. As noted, we
held in Jacobson that the same principles apply in assessing
the validity of waivers of the right to counsel as of the right
to be present. Therefore, we also look to the following cases
addressing waiver, or forfeiture, of the Article I, section 11,
right to counsel.
In Langley, the defendant’s trial was delayed mul-
tiple times after the trial court removed the defendant’s
counsel over the defendant’s objection, and the defendant
refused to cooperate with his new counsel. 351 Or at 655-
56. Before trial, the defendant’s counsel moved to withdraw,
citing the breakdown of the attorney-client relationship.
In response, the trial court gave the defendant the choice
to proceed with his current counsel or represent himself.
Id. at 658-59. Noting his discomfort with both options, the
defendant declined to make a choice, which the court char-
acterized as an attempt to “manipulate the system.” Id. at
278 State v. Peltier
660. The court then ruled that the defendant would proceed
pro se.
The Supreme Court first concluded that the defen-
dant had not expressly waived his right to counsel by declin-
ing to choose between the options presented by the trial
court because “[n]one of defendant’s statements to the court
expressed such a waiver” and the court “[would] not infer a
waiver of a defendant’s constitutional right to counsel from
a silent record.” Id. at 668. The court further concluded that
the defendant had not waived his right through conduct.
The court explained that a “defendant’s conduct may serve
as a valid waiver so long as the conduct adequately conveys
the defendant’s knowing and intentional choice to proceed
in court without counsel.” Id. at 669. However, “an advance
warning that a repetition of behavior that amounts to mis-
conduct will result in the defendant having to proceed pro
se,” rather than some other consequence, is required. Id. at
670. According to the court, no warning of that kind was
given to the defendant. Id. at 671.
In evaluating the defendant’s conduct, the court
distinguished between the defendant’s “noncooperation
with appointed counsel and the kind of misconduct that may
establish a valid waiver by conduct.” Id. at 670. The court
concluded that the defendant’s noncooperation had not risen
to the level of misconduct that would support a conclusion of
waiver. Further, the court held that the defendant did not
engage in misconduct by refusing to make the choice pro-
posed by the trial court. Id. at 673-74.
In Guerrero, each of the defendant’s three attorneys
withdrew after the breakdown of their relationships with
the defendant. 277 Or App at 840. Before appointing the
third attorney, the trial court warned the defendant that
this was the defendant’s “last court-appointed attorney.”
Id. In moving to withdraw, the defendant’s third attorney
attributed the breakdown, in part, to the defendant’s desire
to testify, which caused the attorney to have ethical con-
cerns. Id. Noting its earlier warning, the court gave the
defendant a choice to abstain from testifying and proceed
to trial with counsel or to testify and represent himself. Id.
at 842. The court then explained various aspects of the trial
Cite as 318 Or App 267 (2022) 279
proceedings. Id. The defendant elected to represent himself
and the trial court found that the defendant had impliedly
waived his right to counsel. Id. at 843.
Assuming without deciding that the trial court’s
warning that his third attorney was his last was sufficient
to apprise him of the possibility of proceeding to trial with-
out counsel, and that the defendant’s actions constituted
misconduct, we nevertheless concluded that the defendant
did not knowingly waive his right to counsel. Id. at 844-45.
We distinguished between the requirements that a defen-
dant be warned that further misconduct could result in
waiver of counsel and that a defendant be apprised of the
right to counsel and the risks of self-representation. Id. at
846-47. We further explained that “for the advance warn-
ing requirement to be meaningful, a defendant must under-
stand the risks and disadvantages of self-representation
before he engages in the additional misconduct that forms
the predicate for a finding of implied waiver.” Id. at 846
(emphasis in original). We assumed that the defendant had
been sufficiently warned of the potential consequences of
further misconduct but concluded that the defendant had
not been sufficiently apprised of his right to counsel and the
risks of self-representation. Id. at 848. Although the court
had explained the stages of trial proceedings, that expla-
nation occurred after the defendant had engaged in the
purported misconduct. Id. at 848 n 5. And, we explained,
the record contained insufficient evidence to conclude that
the defendant’s experience with the criminal justice system
supported a finding that he understood the risks of self-
representation. Id. at 850.
Applying the principles in the above cases to the
present circumstances, we conclude that a defendant may
waive the right to be present by misconduct. We note, how-
ever, that defendant’s conduct here is not the kind of disrup-
tive misconduct that took place in Lacey and Menefee. In those
cases, the defendants consistently interrupted the attorneys
and the trial courts, refused to adhere to the courts’ rulings,
and behaved aggressively such that the trial could not pro-
ceed in their presence. Defendant’s conduct here was quite
different. But, in Lacey and Menefee, we also emphasized
280 State v. Peltier
that a defendant’s loss of the right to be present must be
the product a knowing and voluntary choice to engage in
misconduct. That was also true in Langley, and in Guerrero,
where we explained that, to constitute an implied waiver of
the right to counsel, a defendant’s conduct must adequately
convey the defendant’s intentional choice to engage in that
conduct in spite of the defendant’s knowledge that it would
result in the loss of the right and the risks associated with
self-representation.
The state’s arguments and the above cases also
raise questions about the difference between the loss of a
right by misconduct and an implied waiver of a right. Those
are distinct concepts. The latter recognizes the possibility of
a constitutional waiver wherein the defendant’s conduct con-
veys an intentional and knowing waiver but does not consti-
tute misconduct. Langley and Guerrero seemingly collapsed
those concepts, in that they referred to the existence of
implied waivers “by conduct,” but in each case treated mis-
conduct as a necessary element of such waivers. In any case,
we understand from the caselaw that a waiver—whether
express, implied by conduct or forfeited by misconduct—
must be made knowingly. We conclude that the state failed
to establish that here. That is, we need not decide whether
defendant’s conduct qualifies as misconduct or whether we
recognize implied waivers without misconduct, because
there is insufficient evidence that defendant’s waiver was
knowing.
As we have stated, the touchstone of the inquiry
is whether there has been “an intentional relinquishment
of a known right, based on what the defendant knows and
understands.” Jacobson, 296 Or App at 91-92. A defendant
must at least understand that trial will proceed without the
defendant, and the risks and consequences associated with
that absence. As noted, whether there has been such a relin-
quishment depends on the particular circumstances of each
case. Meyrick, 313 Or at 132.
With that in mind, we note the circumstances
that demonstrate the absence from the record of anything
showing that defendant intentionally relinquished a known
right to participate in trial based on what he knew and
Cite as 318 Or App 267 (2022) 281
understood. We do not mean to suggest, however, that there
is any one way to make an appropriate record. We recog-
nize, and discuss later, the difficulties that this particular
defendant presented the court in facilitating the creation of
that record, but we still must be able to discern defendant’s
waiver from the record.
To begin with, there was no colloquy on the record
wherein the trial court warned defendant of the risks of
failing to appear at his own trial or the potential impacts
on his other constitutional rights. Although the trial court
explained that “we just need to make it clear to him that,
if he doesn’t come, that the proceedings are going to con-
tinue in his absence,” its directive to Danner was to inform
defendant that “the trial needs to proceed, that he has every
right to participate, that we’re more than happy to bring
him over.” We are not convinced from that directive, which
was communicated by Danner to Star, and then by Star to
defendant, that defendant was actually told that the trial
would proceed without him if he did not respond.
Moreover, Star did not testify under oath or even
speak to the court about what information would satisfy the
court that defendant not only knew of his right, but also
knew of the risks of failing to attend his trial, including the
effects on his other rights. There is no evidence that the dep-
uty who spoke with defendant understood anything about
a defendant’s constitutional trial rights beyond the basic
notion that defendant had the right to be in the courtroom
during trial. Nor was defendant’s attorney present with him
to explain the risks and consequences.
That Best’s report found defendant able to aid and
assist is not dispositive—whether a defendant is able to aid
and assist counsel is a different question than whether a
defendant knows of the right to be present and the attendant
risks of forfeiting that right. And although the trial court’s
finding that defendant’s absence was willful was supported
by evidence in the record, that finding was only sufficient to
support a conclusion that the waiver was intentional. That
defendant voluntarily declined to attend trial does not show
that he understood the risks and consequences of waiving
his right to be present. Nor does defendant’s history with
282 State v. Peltier
the criminal justice system, as the state suggests, support
a conclusion that defendant knowingly waived his right. See
e.g., State v. Massey, 160 Or App 197, 981 P2d 352 (1999)
(court would not infer from the record that the defendant
understood the risks of self-representation because he had
worked as a paralegal, had been involved in civil lawsuits,
and had been represented by several lawyers in the present
case); Guerrero, 277 Or App at 850 n 8 (defendant’s 12 prior
convictions not sufficient to support finding that he ade-
quately understood the risks of self-representation, where
the record was silent as to whether any of those convictions
had gone to trial).
To summarize, there was insufficient evidence to
support a determination that, at the time of the purported
waiver, defendant knowingly waived his right to be pres-
ent at trial. Therefore, the trial court erred in deciding that
defendant waived his right to be present and in proceeding
to trial in his absence.
The state concedes that that error was not harm-
less, and we accept the state’s concession. Defendant was
absent for every critical stage of the trial and was denied the
opportunity to assist his attorney in selecting the jury and
in confronting witnesses, among other things.2 Because we
cannot say how defendant’s presence would have affected the
outcome of the trial, we conclude that his erroneous absence
was not harmless. See State v. Erb, 256 Or App 416, 427, 300
P3d 270 (2013) (trial court’s error in allowing the defendant
to proceed to trial without counsel was not harmless where
we were unable to tell what the outcome would have been if
the defendant had been represented by counsel).
We recognize the difficulty the trial court faced
here. In addition to the significant time constraints affect-
ing trial courts, the court here was confronted with a defen-
dant who, by all accounts, would not respond to any warn-
ings or advice, from the court or otherwise, and remained
2
The state points to additional evidence demonstrating that defendant
knowingly waived his right to be present on the second day of trial. We do not
address the relevance of that evidence because we conclude that, even if defen-
dant validly waived his right to appear on the second day, defendant’s erroneous
absence on the first day of trial would nonetheless warrant reversal.
Cite as 318 Or App 267 (2022) 283
unresponsive in his cell. But we are normally reluctant
to conclude that fundamental rights have been waived.
Jacobson, 296 Or App at 91. That is especially true here,
where defendant, who had a history of mental health issues,
did not affirmatively waive his right. Faced with a challeng-
ing situation like the one here, a trial court must at least
ensure that a defendant has been accurately informed of the
fact that the trial will continue in his absence, as well as
the risks and consequences of that absence. There must be
a record from which we can tell that information has been
conveyed to the defendant. What measures will suffice will
depend on who is delivering the information. Greater care in
ensuring that warnings and advice are fully and accurately
delivered is required where the person repeating that infor-
mation lacks legal experience.
In sum, we conclude that the state failed to estab-
lish that defendant knowingly waived his right to be pres-
ent. The trial court erred in concluding that defendant
waived his right to be present for trial and that error was
not harmless. Accordingly, we reverse and remand for a new
trial.
Reversed and remanded for a new trial.