State v. Fitzgerald
315 Or.App. 336, 500 P.3d 721 (2021)
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Rule of Law:
For purposes of second-degree burglary in Oregon, a structure can qualify as a 'building' if it is designed to stand more or less permanently, is enclosed, and serves as a storehouse. A defendant's ambiguous statement about firing an attorney, made during a disruptive outburst, is not preserved for appeal unless reiterated in an orderly manner to provide the trial court a fair opportunity to address a genuine request.
Facts:
- Joshua Fitzgerald stole two bags of recyclable cans from a Conex box located behind a Safeway in Burns.
- The Conex box had been in that specific location for approximately two and a half years and had not been moved since its placement.
- The Conex box was an enclosed structure, not affixed to a foundation, and had a lockable door.
- Safeway used the Conex box as a storeroom for recyclable cans and bottles, considering it an extension of the back storeroom to maintain sanitary conditions where food was stored.
- Only authorized Safeway employees had access to the Conex box, and it was consistently kept locked.
- During a contentious release hearing, Fitzgerald stated to the trial court, 'I want to fire my attorney, too,' and, after being instructed to calm down, reiterated, 'No, I don’t need to calm down. I want to fire my attorney, please.'
- Fitzgerald did not raise the issue of wanting to fire his attorney again at any point before or during his subsequent two trials.
Procedural Posture:
- Joshua Fitzgerald was charged with second-degree burglary and unauthorized use of a vehicle in Harney County Circuit Court (trial court).
- During a release hearing, the trial court found Fitzgerald in contempt of court for an uncalled outburst.
- Fitzgerald moved for a judgment of acquittal on the second-degree burglary count, arguing the Conex box was not a 'building,' but the trial court denied the motion.
- Defendant proceeded to trial with his appointed counsel, which ended in a mistrial.
- Defendant proceeded to a second trial with the same appointed counsel, which resulted in a jury conviction for second-degree burglary and unauthorized use of a vehicle.
- Fitzgerald appealed his judgment of conviction to the Oregon Court of Appeals.
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Issue:
1. Does a Conex box used as a long-term, enclosed storeroom for business purposes qualify as a 'building' under Oregon's second-degree burglary statute, ORS 164.215, which incorporates the definition in ORS 164.205(1)? 2. Is a defendant's statement expressing a desire to fire their attorney, made during a disruptive outburst that led to a contempt finding, sufficiently preserved for appellate review if not reiterated or clarified in an orderly manner before trial?
Opinions:
Majority - Lagesen, P. J.
1. Yes, a Conex box used as a long-term, enclosed storeroom for business purposes can qualify as a 'building' for second-degree burglary. The court affirmed the denial of the motion for judgment of acquittal. It found that a rational trier of fact could determine the Conex box was a 'building' under the ordinary definition referenced in ORS 164.205(1). This definition, informed by Webster’s Third New Int’l Dictionary, includes a 'constructed edifice designed to stand more or less permanently, covering a space of land, usu. covered by a roof and more or less completely enclosed by walls, and serving as a dwelling, storehouse, factory, shelter for animals, or other useful structure.' Given the Conex box's long-term placement (two-and-a-half years), its complete enclosure, and its use as a storehouse by Safeway, a factfinder could reasonably conclude it met this definition. 2. No, a defendant's statement expressing a desire to fire their attorney, made during a disruptive outburst that led to a contempt finding, is not adequately preserved for appellate review if not reiterated or clarified in an orderly manner before trial. The court agreed that the issue was not preserved for appeal. Defendant's statements about firing his attorney occurred during an 'uncalled outburst that disrupted the orderly conduct of the proceedings,' which was severe enough to warrant a contempt finding. In this context, the trial court could have reasonably believed that defendant was merely expressing frustration rather than making a genuine request for substitute counsel or to proceed pro se. Furthermore, defendant did not clarify or reiterate his request in an orderly manner at any point before proceeding through two trials with his appointed counsel without further expressing dissatisfaction. For an issue to be preserved for appeal, a party making a request during a disruptive outburst must ordinarily repeat that request in a manner consistent with orderly courtroom proceedings to give the trial court a fair opportunity to address it. (Separately, the court acknowledged that the nonunanimous jury instruction constituted plain error but declined to exercise its discretion to correct it because the jury was not polled, and therefore, it was unknown whether the error was prejudicial, consistent with State v. Dilallo.)
Concurring - James, J.
Justice James concurred with the majority's judgment on both the 'building' issue and the nonunanimous jury instruction. However, he disagreed with the majority's reasoning regarding the preservation of defendant's 'request to fire his attorney.' Justice James argued that a defendant's statements, 'I want to fire my attorney, too,' and 'No, I don’t need to calm down. I want to fire my attorney, please,' constituted a clear and unambiguous invocation of the right to self-representation, even though they occurred during a disruptive outburst. He asserted that constitutional rights are not reserved only for those who invoke them politely, and the context of anger or a disruptive outburst should not render such an invocation a nullity or 'unpreserved' as to its genuineness. While acknowledging the importance of courtroom decorum, he maintained that decorum cannot stand above the constitution. He suggested that the proper inquiry should be whether the trial court could have delayed the required Miller inquiry (assessment of a self-representation request) or whether defendant's subsequent conduct—proceeding through two trials with the same counsel without reiterating the request—amounted to a waiver of his right to object to the court’s failure to rule. His concurrence in the judgment rested on the principle of waiver, rather than the majority's determination that the initial invocation was not genuine or unpreserved.
Analysis:
This case clarifies the broad interpretation of 'building' under Oregon's second-degree burglary statute, extending it to structures like storage containers used for business, based on their functional purpose and semi-permanent nature. It also provides crucial guidance on the stringent requirements for preserving issues for appeal, particularly concerning a defendant's right to counsel or self-representation when the request is made during disruptive conduct. Future cases will likely cite this decision when evaluating whether non-traditional structures qualify as buildings for burglary and to emphasize that constitutional rights, while fundamental, must be invoked clearly and, if initially ambiguous or disruptive, reiterated in an orderly fashion to ensure proper judicial consideration and preservation for appellate review.
