State v. Craigen, 295 Or. App. 17

Background

Defendant faced four felon-in-possession (FIP) charges and retained counsel (Gushwa) who directed prosecutors and police not to interview defendant without his permission.
On the morning of a scheduled FIP status conference, defendant shot and killed a neighbor (Carter); defendant was arrested two days later and given Miranda warnings before a recorded interview.
Detectives initially questioned defendant about the homicide; defendant volunteered information about prior firearm charges and then said he believed the Carters had "set him up" on the 2011 FIP charges.
After defendant asserted that belief, detectives directly questioned him about how he acquired the firearms underlying the 2011 FIP charges, eliciting incriminating statements.
Defendant moved to suppress statements from the January 1 interrogation under Article I, § 11 of the Oregon Constitution for failure to notify and afford counsel on the FIP charges an opportunity to attend; the trial court denied suppression and the interview was played to the jury.
On appeal, the court applied State v. Prieto-Rubio and related Oregon precedent and concluded that questioning after defendant disclosed the connection violated Article I, § 11; the court ordered suppression of all post-violation statements and reversed the murder conviction as not harmless error (other convictions affirmed).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether police violated Article I, § 11 by questioning defendant about matters that could elicit incriminating information on charges for which he had counsel	State: The homicide and FIP charges were not sufficiently related under Potter; police permissibly questioned about the murder without contacting FIP counsel	Defendant: Once it became apparent questioning implicated the FIP charges (when he said he was "set up"), police had to notify or stop and contact counsel; statements thereafter must be suppressed	Court: Under Prieto-Rubio, once defendant disclosed a link, it was objectively foreseeable further questioning would elicit incriminating FIP info; continued questioning violated Article I, § 11
Scope of suppression required when Article I, § 11 is violated	State: Suppression not required because defendant only sought suppression of the entire interview; alternatively, counsel had effectively withdrawn	Defendant: At minimum, suppress post-violation statements and any derivative evidence; counsel had not validly withdrawn	Court: Suppress all statements after the point where questioning violated Article I, § 11; state did not show statements were untainted or that waiver/withdrawal saved admissibility
Whether defendant validly waived his right to counsel on the FIP charges	State: Gushwa told officers he had withdrawn, so waiver occurred	Defendant: No valid waiver without opportunity to consult counsel; Sparklin precludes such waiver by police action alone	Court: No valid waiver; officer belief that counsel withdrew does not excuse Article I, § 11 protections
Whether the constitutional error was harmless as to murder conviction	State: Not argued successfully	Defendant: Error affected central evidence on mental state defenses (EED and GEI)	Court: Error was not harmless for murder conviction; reversal and remand necessary

Key Cases Cited

State v. Prieto-Rubio, 359 Or. 16 (Oregon 2016) (adopts objective foreseeability test for when questioning about uncharged matters implicates right to counsel on charged offense)
State v. Sparklin, 296 Or. 85 (Oregon 1983) (broad Article I, § 11 protection ensuring counsel’s presence when state may elicit incriminating evidence)
State v. Hensley, 281 Or. App. 523 (Or. App. 2016) (suppression required for evidence produced after Article I, § 11 violation)
State v. Savinskiy, 286 Or. App. 232 (Or. App. 2017) (rejects argument that right had not attached; suppresses evidence obtained without notifying counsel)
State v. Beltran-Solas, 277 Or. App. 665 (Or. App. 2016) (officer conceded Article I, § 11 violation where questioning addressed represented charges)
State v. Potter, 245 Or. App. 1 (Or. App. 2011) (factors for assessing factual relatedness of charges pre-Prieto-Rubio)
State v. Staunton, 79 Or. App. 332 (Or. App. 1986) (early precedent on counsel notification and related questioning)
State v. Davis, 336 Or. 19 (Oregon 2003) (harmless error standard)