After a person has been charged with a crime and the right to counsel has attached, Article I, section 11, of the Oregon Constitution prohibits the police from asking that person about the charged crime without first notifying the person’s lawyer, unless the person initiated the conversation and knowingly and intentionally waived his or her right to counsel.
See State v. Randant,
Two women brandishing a sword robbed the Purple Parrot Lounge in Klamath Falls. As a result of that crime, the grand jury charged defendant with conspiracy to commit robbery and first-degree robbery. The trial court arraigned defendant on those charges and appointed counsel to represent her. After her arraignment, defendant remained in custody pending trial. Approximately two months later, while she was still awaiting trial, defendant sent two notes to Oregon State Police Detective Mogle asking him “to come talk to her.” 1 Although the notes did not say what defendant wanted to talk about, Mogle recently had spoken to a member of defendant’s family and understood that defendant “wanted to see her kids before she went to prison.”
After he received the second note, Mogle agreed to meet with defendant. Pursuant to a department policy that requires two law enforcement officers to be present during such a meeting, Mogle asked Klamath County Detective Johnson to accompany him. When he asked Johnson to go with him, Mogle was not aware that Johnson had arrested defendant on her pending robbery and conspiracy charges. Johnson, for his part, did not realize that the person whom Mogle was going to meet was the person whom he had arrested approximately two months earlier for the Purple Parrot robbery.
When defendant was escorted into the interview room to meet with Mogle, she was surprised to see Johnson there. She asked Mogle, “Oh, no, what’d you bring him for?” Defendant said that Johnson was “the one [who] had arrested her on the case that she’s
When asked if that were the entirety of their conversation, Mogle testified:
“No. She said that she wanted to see her kids before she went up to the pen. That she had information that Gina had done the Purple Parrot robberies in Medford [apparently a different set of robberies from the Klamath Falls Purple Parrot robbery]. And that her attorney was an asshole. And that I was to relate to the DA that if you allowed her to have programs, she would take the deal and plead right away. And also there was a conversation — she said that she knew where the sword — who—the sword was — she gave it to somebody.”
When asked whether he had questioned defendant about “the Purple Parrot incident,” Mogle replied that he did not think that he had asked specific questions about that robbery. However, he noted that he might have said, “That was pretty stupid. Why would you be involved in that.” Mogle also acknowledged that he told defendant that, “if she knew where the sword was[, s]he probably ought to give it up.” In response to Mogle’s statement, defendant used Mogle’s cell phone to call the person who was keeping the sword. That person turned the sword over to the police.
It is not clear from Mogle’s testimony when, during their conversation, he discussed either the robbery or the sword with defendant or what prompted him to mention the charged crimes; specifically, it is not clear whether Mogle asked defendant about the Purple Parrot robbery only after she brought up the possibility of making a deal with the district attorney regarding that crime or whether he asked about the pending charges first. One proposition is clear from everyone’s testimony, however. At no point during the meeting did either officer advise defendant of her Miranda rights, remind her that she had a right to have counsel present before discussing the pending charges, or otherwise seek to determine whether defendant knowingly and intentionally chose to waive her right to counsel regarding the pending charges.
After defendant’s lawyer learned of the meeting, he moved to suppress both defendant’s statements about the charged crime and the physical evidence that the officers had obtained as a result of the meeting. He contended that, in questioning defendant, the officers had violated her right to counsel under both Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution. The trial court denied defendant’s motion. It reasoned that, because defendant had “evinced a willingness and desire for a generalized discussion about the investigation,” the officers had not violated either her state or federal right to counsel.
After the trial court’s ruling, defendant entered into a plea agreement with the state. It appears that defendant agreed to enter a conditional guilty plea to second-degree robbery,
see
ORS 135.335(3) (authorizing conditional guilty pleas), and that the state agreed to dismiss the conspiracy and first-degree robbery charges.
2
The trial court accepted
the parties’ plea agreement and entered judgment accordingly. The Court of Appeals affirmed the trial court’s judgment, and we allowed defendant’s petition for review to consider whether the officers complied with defendant’s right to counsel, as guaranteed
The relevant principles are well established. Article I, section 11, of the Oregon Constitution guarantees, among other things, the right of a criminal defendant “[i]n all criminal prosecutions * * * to be heard by himself and counsel.” That right “entitle[s a person charged with a crime] to the benefit of an attorney’s presence, advice and expertise in any situation where the state may glean involuntary and incriminating evidence or statements for use in the prosecution of its case against defendant,” without regard to “whether or not [a] defendant specifically requests an attorney’s presence at the interrogation.”
State v. Sparklin,
That bar is not absolute, however. As
Sparklin
made clear, the right to counsel under Article I, section 11, is offense-specific; that is, “[t]he [state constitutional] prohibitions placed on the state’s contact with a represented defendant do not extend to the investigation of factually unrelated criminal episodes.”
In this case, there is no dispute that the state had charged defendant with two crimes and that the trial court had appointed counsel to represent defendant on those charges more than two months before she met with Mogle and Johnson. There is also no dispute that Mogle’s conversation with defendant was not limited to factually unrelated crimes; at least some of their conversation centered on the robbery of the Purple Parrot in Klamath Falls, which gave rise to the robbery and conspiracy charges that defendant was facing. Finally, the state does not claim that defendant unilaterally volunteered the statements that she later sought to suppress. Rather, as Mogle testified, defendant made statements about the charged crime in response to his remarks to her. The issues accordingly reduce to whether defendant initiated the conversation about the charged crimes and, if she did, whether she knowingly and intentionally waived her right to counsel before making those statements.
On the first issue, the parties disagree as to who brought up the Klamath Falls robbery first — an issue that is not completely clear from the record that the state developed at the hearing on defendant’s motion to suppress. Even if we assume, however, that defendant initiated the discussion of the charged crimes, the state still had to prove that defendant knowingly and intentionally waived her right to counsel.
See Randant,
On that issue, this court held in
State v. Foster,
Beyond that, a defendant’s decision to speak with an officer after being advised of his or her
Miranda
rights provides a basis for inferring that the defendant intentionally chose to relinquish those rights.
See State v. Davidson,
With those principles in mind, we turn to the facts of this case. As noted, there was no evidence at the suppression hearing that anyone had advised defendant of her Miranda rights at any point in this case. It is true, as the state notes, that the record discloses that the trial court had appointed counsel for defendant approximately two months before she met with Detectives Mogle and Johnson and that defendant had expressed a negative impression of her trial counsel during that meeting. And the state argues that the trial court could have inferred from those facts that defendant was aware that she had a right to counsel and that she chose not to exercise that right.
However, even if the court could have drawn those inferences, there is no basis in this record from which the trial court also could have inferred that defendant was aware that the statements she made to the officers could be used against her, that the officers were not necessarily acting in her interest when they asked about the sword, or that her counsel could have provided her with valuable assistance in navigating her way through the interview. There is, in short, no basis in this record from which the trial court could have inferred that defendant was aware of the benefit that she was giving up by speaking with the officers without her counsel present — information that is also necessary for a knowing waiver of the right to counsel.
See Haynes,
As noted, defendant entered a conditional guilty plea after the trial court denied her motion to suppress. Because defendant has finally prevailed on that motion, she may withdraw her plea on remand if she chooses to do so.
See
ORS 135.335(3) (providing that remedy for defendants who enter conditional guilty pleas and finally prevail on appeal);
State v. Dinsmore,
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.
Notes
We take the facts from the hearing on defendant’s motion to suppress the evidence that the police obtained as a result of their conversation with her. We state the facts consistently with Mogle’s testimony at that hearing, which the trial court “adopt[ed] * * * as findings [of fact] for the purpose of the Motion” to suppress.
Defendant’s plea petition incorporates by reference the terms of the “plea agreement.” We note that the record contains an “offer of negotiation,” which both the prosecutor and defense counsel signed. We also note that one of the terms in the offer (the offer does not bind the state if defendant appeals) appears to be at odds with one of the terms set out in the plea petition (a conditional guilty plea). It is unclear on this record whether the signed offer of negotiation is the plea agreement to which the plea petition refers, whether the parties modified the offer of negotiation, which became the plea agreement to which the plea petition refers, or whether the parties entered into a new plea agreement, which superseded the offer of negotiation. Although the exact terms of the parties’ plea agreement may matter on remand,
see State v. Dinsmore,
Because we assume that defendant initiated the discussion of the Klamath Falls robbery, we do not consider whether Johnson’s unwanted presence had any effect on the question of initiation.
An officer need not go through the more extensive colloquy required when a defendant seeks to waive the right to counsel’s assistance at trial.
Randant,
341 Or
at 73;
cf. Meyrick,
The state noted in a memorandum of additional authorities that defendant had been arraigned and that, if she had appeared at arraignment without counsel, ORS 135.040 would have required the trial court to advise her that she had the right to counsel before being arraigned. Even if we assume that the trial court gave defendant that advice at arraignment, we do not see how that advances the state’s argument. Defendant’s arraignment occurred approximately two months before she met with Detectives Mogle and Johnson. Not only would any advice at arraignment have come long before defendant contacted Mogle, but ORS 135.040 only required the trial court to notify defendant that she had the right to counsel. It did not require the court to advise her of either the benefits of representation or the risks of going without counsel, which is the information missing here.