State v. Craigen, 489 P.3d 1071

Background

Defendant was represented by counsel on pending felon-in-possession (FIP) charges when police questioned him about a later homicide of his neighbor.
During questioning, defendant said he shot the victim because he believed the victim had set him up on the FIP charges; officers then directly questioned him about the firearms underlying the FIP case and elicited incriminating statements.
On initial appeal the Court of Appeals (Craigen I) reversed the murder conviction under Article I, § 11 (right to counsel) and suppressed statements as fruit of the violation, relying in part on State v. Savinskiy (Savinskiy I).
The Oregon Supreme Court reversed Savinskiy I (Savinskiy II) and remanded this case for reconsideration; on remand the Court of Appeals reevaluated whether Savinskiy II altered its prior Article I, § 11 analysis.
The Court of Appeals adhered to its prior decision: it held the officers violated Article I, § 11 by questioning defendant about the FIP charges without notifying counsel once the connection to the homicide became apparent, suppressed the statements, found the evidentiary exclusion of some EED expert material not reversible on the record, and reversed Count 5 for a nonunanimous jury verdict.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether officer questioning violated Article I, § 11 because defendant had counsel on related FIP charges	State: Savinskiy II means questioning about distinct, later crime did not violate § 11 here	Craigen: Prieto‑Rubio controls; once questioning implicated the FIP charges, counsel should have been notified	Held: Violation occurred once defendant linked the homicide to the FIP charges and officers directly questioned about those charges without notifying counsel
Scope of suppression — whether statements about the uncharged homicide must be suppressed as fruit of the § 11 violation	State: Savinskiy II and facts distinguishable; suppression should be narrower	Craigen: All statements after violation must be suppressed absent independent source	Held: Prior law requires suppression of evidence derived from the § 11 violation unless the state shows an independent source; Savinskiy II did not change that rule
Whether exclusion of some expert evidence for extreme emotional disturbance (EED) was reversible error	State: Any error was harmless	Craigen: Exclusion harmed defendant's EED defense	Held: Record insufficient to show harmlessness; on present record defendant did not show reversal warranted solely on this error
Whether Count 5 conviction should be reversed for a nonunanimous jury verdict	State: Verdict should stand	Craigen: Nonunanimous verdict violates unanimity principles announced in Ulery and Ramos	Held: Plain error; conviction on Count 5 reversed and remanded for resentencing

Key Cases Cited

State v. Savinskiy, 364 Or 802 (Oregon Supreme Court) (held § 11 did not bar questioning about an ongoing criminal scheme in that case)
State v. Prieto-Rubio, 359 Or 16 (articulated standard for when questioning about new conduct implicates counsel on pending charges)
State v. Sparklin, 296 Or 85 (once counsel is retained, interrogation about the charged crime requires notifying counsel)
State v. Beltran-Solas, 277 Or App 665 (violation of § 11 requires suppression of evidence obtained as a result of the violation absent an independent source)
State v. Hensley, 281 Or App 523 (discussed remedy scope for § 11 violations)
State v. Ulery, 366 Or 500 (addressed nonunanimous jury verdicts and plain error relief)
Ramos v. Louisiana, 140 S. Ct. 1390 (U.S. Supreme Court decision on jury unanimity)