STATE OF OREGON, Petitioner on Review, v. JESUS R. PRIETO-RUBIO,
CC 11693CR, 112523CR; CA A152030 (Control), A152033; SC S062344
IN THE SUPREME COURT OF THE STATE OF OREGON
April 7, 2016
359 Or 16 (2016)
No. 20
On review from the Court of Appeals.*
Argued and submitted February 4, 2015.
Rebecca M. Auten, Assistant Attorney General, Salem, argued the cause and filed the brief for petitioner on review. With her on the briefs were Ellen F. Rosenblum, Attorney General, Anna Joyce, Solicitor General.
John J. Tyner, III, Hillsboro, argued the cause and filed the brief for respondent on review.
Alexander A. Wheatley, Portland, filed the brief for amicus curiae Oregon Justice Resource Center and on behalf of amici curiae American Civil Liberties Union of Oregon, Inc. and the Oregon Criminal Defense Lawyers Association. With him on the brief was Emily E. Elison, Portland.
Before Balmer, C.J., Kistler, Walters, Landau, Baldwin, Brewer, and Nakamoto, Justices.**
LANDAU, J.
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
Case Summary: Defendant was charged with two counts of first-degree sexual abuse of A, a young girl in his extended family, and he retained counsel on those charges. Police later interviewed defendant without counsel about the possible sexual abuse of two of defendant’s nieces, K and L. In the criminal case involving K and L, defendant moved to suppress certain incriminating statements he had made in the uncounseled interview. He argued that because he was represented on the charges involving A and those charges were factually related to the abuse of K and L, his right to counsel under
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
LANDAU, J.
After a defendant has been charged with a crime and the right to counsel has attached,
We conclude that the appropriate test for determining the permissible scope of questioning of a criminal defendant who is represented by counsel is whether it is objectively reasonably foreseeable that the questioning will lead to incriminating evidence concerning the offense for which the defendant has obtained counsel. In this case, the charged and uncharged offenses were so closely related that it was reasonably foreseeable that questioning defendant about the uncharged offenses would elicit incriminating evidence about the charged offense. As a result, that questioning violated defendant’s state constitutional right to counsel. Accordingly, we affirm the decision of the Court of Appeals.
I. FACTS
The relevant facts are not in dispute. On August 8, 2011, a 12-year-old girl, A, reported that defendant, a member of her extended family, had sexually abused her the previous day. She said that defendant had touched her breasts and vaginal area while she was at his home. The following day, Detective Rookhuyzen went to defendant’s home and interviewed him. Defendant admitted that he had been in the same room with A, but he said that he did not remember what had happened there. Rookhuyzen arrested defendant for his abuse of A.
At the station, Rookhuyzen interviewed defendant again. He asked defendant primarily about A. But he also asked whether any
Over the next several weeks, Rookhuyzen continued to investigate. He located K, who turned out to be a niece of defendant. K reported that defendant had repeatedly touched her vaginal area. Rookhuyzen located another minor victim, L, who was another niece of defendant and who also reported that defendant once had put his hands in her pants and touched her vaginal area. Both K and L said that the incidents of abuse had occurred while they were alone with defendant at his home. They reported that the separate incidents occurred at least eight months before defendant allegedly abused A.
Rookhuyzen went to the Washington County Jail, where defendant was being held on the charges relating to A. Rookhuyzen read defendant his Miranda rights, and defendant waived those rights. The detective knew that defendant had retained counsel on the charges relating to A. But he did not notify defendant’s lawyer about the interview, because he intended to ask defendant only about K and L. During the interview, Rookhuyzen questioned defendant about K and L, and defendant made incriminating statements about the incidents involving those victims. The state then charged defendant with three counts of first-degree sexual abuse, two counts involving K and one involving L. The indictment alleged that defendant had abused K “on or between August 31, 2009 and January 1, 2011.” It further alleged that defendant had abused L “on or between January 1, 2010 and January 1, 2011.”
The state then moved to consolidate the case involving A with the case involving K and L. The state informed the court that it was proper to consolidate the cases because the crimes alleged against defendant “involve many of the same witnesses and arise from the same investigation” and that those crimes “are of the same or similar character and show a common scheme or plan.” See generally
Before trial, defendant moved to suppress the statements that he had made to Rookhuyzen regarding K and L because they had been obtained in violation of his right to counsel, guaranteed by
At the hearing on defendant’s motion, Rookhuyzen testified about his interview of defendant regarding K and L.
“The Court: How would I ultimately be able to say, Officer, that you weren’t ending up talking to the defendant about things that fell with—under the case that he was already represented? How do you know you weren’t doing that?
“The Witness: Well, I think it’s impossible to have a conversation with him and not have some overlap. These are family members. So I mean, I think that it’s fair to say, you, know, a name might have come up. But at this point, he’d been charged on the first victim, and I was completely focused on victims two and three.”
Rookhuyzen acknowledged on cross-examination that it was “fair to say” that during all of his interviews he had asked defendant about “the universe of kids who [had come] to his house” over the course of the preceding two years. But when asked about who actually was mentioned in the last interview, the detective replied that only K and L were named.
The trial court denied defendant’s motion to suppress. It explained that defendant’s constitutional right to counsel had attached only as to the charges involving A, and Rookhuyzen’s
“And the fact that the cases appear to be related, because, of course, first of all, they’re—the allegations are against [defendant]; that they’re from minors; and that they involve his house is sufficiently similar to say that they are the same. And the representations of counsel is to the offense charged, which would have been the offenses charged initially [involving A], not the ones related to by the officer that were charged after that, because they involved a different time frame and different victims and result in the allegations of different crimes.”
Defendant waived his right to a jury trial, and the court found him guilty of one count of sexual abuse against K and L and two counts of attempted sexual abuse of A. In rendering the verdict on the case involving K and L, the trial court referred to the incriminating statements that defendant had made to Rookhuyzen during the final interview.
On appeal, defendant argued that the trial court erred in denying his motion to suppress the statements that he had made to Rookhuyzen about K and L. He argued to the Court of Appeals as he had to the trial court, namely, that Rookhuyzen had violated his state constitutional right to counsel by interviewing him without notifying his lawyer when the detective knew that he had retained counsel.
The Court of Appeals agreed with defendant and reversed. The court began with the general proposition that, once a defendant has retained counsel to provide a defense on a criminal charge, there can be no interrogation concerning the events related to that charge unless the defendant’s lawyer is notified and afforded a reasonable opportunity to attend. 262 Or App at 155. Citing this court’s decision in Sparklin, the court noted that the right to insist on the presence of counsel, however, is limited to the “criminal episode” that gave rise to the charge for which he obtained the assistance of an attorney. Id. at 156. Even so, the court commented, “‘we cannot simply take at face value the Supreme Court’s statement that the Article I, section 11, right is specific to the criminal episode in which the accused is charged.’” Id. at 159 (quoting State v. Potter, 245 Or App 1, 7, 260 P3d 815 (2011)). In the view of the Court of Appeals, Sparklin must be understood to apply more broadly. Id. The court observed that interpreting Sparklin to apply solely to the criminal episode for which the defendant was charged could permit the state to game the rule to enable it to interrogate defendants without informing their attorneys, for example, by strategically delaying filing certain charges. Id. To avoid such possibilities, the controlling inquiry must focus on whether the charged offense and the subject of the additional investigation are “factually related,” taking into account the extent to which there is overlapping evidence and close temporal proximity, as well as whether there is close collaboration among those investigating the different incidents. Id. at 156-57.
Applying those principles to the case, the court concluded that the criminal episodes involving A, K, and L were factually related for the purposes of defendant’s
On review, the state now argues that the Court of Appeals erroneously departed from this court’s decision in Sparklin. In the
Defendant argues that the Court of Appeals correctly interpreted Sparklin to hold that the right to counsel under
II. ANALYSIS
Both parties claim support for their positions in Sparklin. The state quotes a reference to “criminal episodes” in the decision, while defendant quotes a different reference in the decision to whether charges are “factually related.” Our task then is to clarify what is the appropriate test under Sparklin for determining the scope of the right to counsel under
A. Doctrinal Context
Although state and federal courts held that the constitutional right to counsel “attached” as of the time of charging, they also held that the scope of that pre-trial right was limited to certain “critical stages” of the criminal prosecution. In Ash, for example, the Supreme Court held that the
This court similarly held that, under
“At the hearing, the report of information given by the defendant is subject to disclosure and defense counsel can make objections and present evidence and additional statements by defendant. Given these procedural opportunities, rarely would there be a risk of irremediable harm from the absence of counsel at the presentence interview. Yet, circumstances are conceivable where the presence of counsel would be helpful.”
An additional aspect of the scope of the state and federal right to counsel concerned whether the right applied only to interrogation about a charged offense, as opposed to interrogation about other matters as yet not the subject of a formal criminal charge. In Brewer v. Williams, 430 US 387, 97 S Ct 1232, 51 L Ed 424 (1977), the United States Supreme Court appeared to suggest that the right was not limited to the charged offense, but extended to other matters that were, in some sense, closely related to the charged offense. In that case, the defendant was charged with the abduction of a young girl, and he retained counsel on that charge. Police later transported him to another city. On the drive, police—believing that defendant had murdered the young girl during the abduction—asked defendant whether he knew where the girl’s body was located and suggested that her parents deserved to give their daughter a proper Christian burial. The defendant then agreed to show the police where he had buried the body. The defendant was later convicted of the murder, based in part on his statements to the police. On appeal, he argued that the trial court should have suppressed the statements, because they violated his
That, at least, is the way that most state and federal courts interpreted Brewer, concluding that the right to counsel extended not just to the charged offense, but also to other uncharged conduct that was “closely related” to the charged offense. See, e.g., People v. Boyd, 86 Cal App 3d 54, 62 (1978), abrogated by Texas v. Cobb, 532 US 168, 168, 121 S Ct 1335, 149 L Ed 2d 321 (2001); State v. Derrico, 181 Conn 151, 168, 434 A2d 356 (1980). At least one state court, the New York Court of Appeals, went further, adopting a “bright-line rule” that prohibited police interrogation about any matter—whether or not related to the charged offense—once the defendant retained counsel on a criminal charge. People v. Rogers, 48 NY2d 167, 169, 397 NE 2d 709 (1979).
B. State v. Sparklin
It was in that context that this court decided Sparklin. In that case, the defendant was charged with forgery after using a credit card at a Eugene shopping center stolen from one Mansell. The defendant retained counsel on that charge. Meanwhile, police obtained information linking the defendant to an incident in Portland in which Mansell had been beaten and his credit cards stolen. They also learned that the defendant might have been involved in an unrelated murder of another man, Davidson. The police, without
The defendant ultimately was convicted of the Davidson murder, based in part on his confession. On appeal, he argued that, among other things, the trial court should have suppressed that confession because the police had obtained it in violation of his right to counsel under
This court rejected the defendant’s argument. Beginning with
As for the scope of that right to counsel, the court had the following to say:
“The development of the right to an attorney at pretrial confrontations between the state and the individual reflects a concern for the preservation of the fairness of trial and counsel’s effectiveness in defending against the charge. Interrogations, like line-ups, polygraph sessions and psychiatric examinations, are investigative tools by means of which the state builds its case against the accused. An attorney’s presence at these encounters may serve to forestall the use of impermissibly derived evidence at trial.
“Yet the [A]rticle I, section 11, guarantee of an attorney, like the federal counterpart, remains focused on the trial; that is, it is the protection of rights to which a defendant is entitled in the trial itself which the guarantee is intended to preserve. In State v. Newton, 219 Or 788, 802-03, 636 P2d 393 (1981), the plurality opinion observed, in the language of the federal analysis:
“‘The right to counsel attaches to certain evidence-gathering processes which are deemed ‘critical stages’ of the prosecution as an extension of a defendant’s right to representation by counsel in court. Any pretrial adversarial contact of the state and a defendant at which some benefit of counsel would be lost if counsel is not present, that is, at which the state’s case may be enhanced or the defense impaired due to the absence of counsel, may be considered a critical stage of the prosecution at which defendant has a right to the presence of counsel’
“It is the fairness of the ‘criminal prosecution’ which counsel’s presence helps to ensure. For this reason the [A]rticle I, section 11 right to an attorney is specific to the criminal episode in which the accused is charged. The prohibitions placed on the state’s contact with a represented defendant do not extend to the investigation of factually unrelated criminal episodes.”
Id. at 94-95 (footnotes omitted).
Turning to the
Applying that test to the facts of the case, the court concluded that the Davidson case was “unrelated” to the charged offense for
C. Later Doctrinal Developments
Meanwhile, in the years following Sparklin, most lower federal courts continued to follow the rule that the right to counsel prohibits police interrogation concerning matters that are “closely related” to, or “inextricably intertwined” with the charged offense. See, e.g., U.S. v. Doherty, 126 F3d 769 (6th Cir 1997), abrogated by Cobb, 532 US at 168 n 1 (acknowledging that tribal charge for sexual abuse and federal charge for engaging in sexual abuse with a child were inextricably intertwined because the same underlying conduct formed the basis for both offenses); U.S. v. Arnold, 106 F3d 37, 42 (3rd Cir 1997), abrogated by Cobb, 532 US at 168 n 1 (holding that a witness intimidation charge and the attempted murder of the same witness were inextricably intertwined for
The Ninth Circuit adopted a slightly broader test, holding that, to determine whether an event is inextricably intertwined with the charged crime, courts must examine “all of the facts and circumstances relating to the conduct involved, including the identity of the persons involved, * ** and the timing, motive, and location of the crimes. No single factor is ordinarily dispositive.” U.S. v. Covarrubias, 179 F3d 1219, 1225 (9th Cir 1999), abrogated by Cobb, 532 US at 168 n 1.
Most state courts followed suit, almost all of them relying on the
In Cobb, the United States Supreme Court significantly altered the legal landscape in holding that the
The defendant ultimately was convicted of the murders. On appeal, he argued that the trial court erred in denying a motion to suppress the evidence of his confession on the ground that it had been obtained in violation of his
The United States Supreme Court reversed, holding that, when the
Justice Breyer, writing for four justices, dissented. Among other things, he suggested that the majority’s narrow, offense-specific test is likely to encourage strategic manipulation of charging by prosecutors as a way to circumvent a defendant’s constitutional right to counsel. Id. at 182-83 (Breyer, J., dissenting). “The majority’s rule,” he complained, “permits law enforcement officials to question those charged with a crime without first approaching counsel, through the simple device of asking questions about any other related crime not actually charged in the indictment.” Id.2
In response, most state courts—those that have adopted federal
A notable exception is the Indiana Supreme Court. In Jewell v. State, 957 NE2d 625 (2011), the court adhered to a version of the inextricably intertwined test as a matter of independent interpretation of its state constitutional guarantee of the right to counsel. In Jewell, the defendant was arrested and charged with tattooing a minor, a misdemeanor, and he retained counsel to defend against that charge. Meanwhile, police learned that the defendant may have sexually abused the same minor. They arranged to have the minor make recorded phone calls to the defendant, and during those calls, defendant
On appeal, the defendant argued that the trial court erred in denying his motion to suppress the incriminating statements that had been recorded, arguing that the statements had been obtained in violation of his right to counsel, guaranteed by
not eliminate “the defendant’s right to aid of counsel before facing the full power of the prosecutorial state.” Id. at 635. The court concluded:
“The ‘inextricably intertwined’ exception to the general rule that [Article I,] Section 13’s right to counsel protection is offense specific applies when it was objectively foreseeable that the pending offense, for which the right to counsel has already attached, was so inextricably intertwined with the offense under investigation that the right to counsel for the pending offense could not be constitutionally isolated from the right to counsel for the offense under investigation. The inquiry focuses on the nature of the conduct involved rather than on the elements of the offenses. A reviewing court must examine and compare all the facts and circumstances—as known at the time of the investigation—related to the conduct, including the nature of the conduct, the identity of the persons involved (including the victim, if any), and the timing, motive, and location of the crimes.”
Id. Applying that test to the facts at hand, the court concluded that the circumstances of the charged offense of unlawful tattooing of a minor, were not so linked to the uncharged sexual abuse offenses that it was objectively foreseeable to the police that the charged misdemeanor was intertwined with the uncharged crimes. Id. at 636.
D. The Correct Rule and Its Application
With the foregoing in mind, we return to Sparklin and its application to this case. Sparklin is not a model of clarity. At one point in the opinion, the court suggested that the test under both state and federal constitutions is offense-specific. 296 Or at 95. At another point, however, the court referred to whether questioning is about “factually unrelated” conduct. Id. And, in dictum, the court suggested that the police questioning about the Mansell assault was improper, even though that questioning concerned an entirely different offense from the charged offense. Id. at 98. Not surprisingly, the state seizes on one reference and urges us to interpret the decision to impose a very narrow, offense-specific test that is not quite the statutory-elements test that the United States Supreme Court adopted in Cobb, but is close to it. And, equally unsurprisingly, defendant seizes on the reference to whether charged and uncharged offenses are “factually related” and argues for a much broader interpretation of the decision.4
Certainly, there is a temptation to follow the lead of the United States Supreme Court in Cobb and borrow the definition that applies for double jeopardy purposes. See
Nothing in Sparklin, however, suggests that the court intended to adopt such a narrow definition of the term. Indeed, the state’s definition of “criminal episode” is hard to square with the balance of the court’s opinion in that case, especially its suggestion that the police had violated the defendant’s right to counsel by interrogating him about the Mansell assault that had occurred in Portland while he was represented on the forgery charge, which had been based on his attempt to use Mansell’s credit card some time later, in Eugene. Moreover, giving the phrase “criminal episode” too narrow a definition risks the sort of strategic charging behavior that the Court of Appeals fairly identified in its opinion in this case, echoing the criticism of the United States Supreme Court’s decision in Cobb.
Defendant’s emphasis on whether the charged and uncharged offenses are simply “factually related” is likewise untenable. To begin with, the court in Sparklin did not use that phrase or apply that test. Rather, it said that the right to counsel does not limit police questioning about “factually unrelated” criminal episodes. It is not quite logical to deduce that, while questioning about factually unrelated criminal episodes is permissible, questioning about factually related criminal episodes is not. Aside from that, the phrase, without more, is too amorphous to be of any value. Virtually any conduct involving the same defendant can be said to be “factually related” at some level of abstraction and yet not really implicate the concerns that underlie the state constitutional guarantee of the right to counsel.
The answer to the conundrum may be found in recalling precisely those underlying
In that regard, Sparklin recalls the Indiana Supreme Court’s decision in Jewell, which was based on the Indiana Constitution’s identical right-to-counsel guarantee. The court there concluded that whether it is objectively foreseeable that questioning about uncharged conduct will implicate a charged offense for which counsel has been retained will depend on the facts and circumstances known at the time of the investigation, concerning “the nature of the conduct, the identity of the persons involved, * * * and the timing, motive, and location of the crimes.” Jewell, 957 NE2d at 635. Those factors likewise are consistent with those that the Court of Appeals mentioned in this case, including temporal proximity, location, nature of defendant’s conduct, and the nature of the investigation process itself and whether it involves the same or separate personnel. Prieto-Rubio, 262 Or at 157-59. We agree that whether charged and uncharged offenses are sufficiently related as to implicate the state constitutional
right to counsel will depend on the facts and circumstances of each case and whether they establish that it is reasonably foreseeable to a person in the position of the questioner that questioning will elicit incriminating information involving the charged offense for which the defendant has obtained counsel. That is an objective test that does not turn on the subjective impression of the questioner.
Turning to the facts of this case, there is no dispute that, when the state charged defendant in the case involving A, his
The investigations of A, K, and L were interrelated from the beginning, as Rookhuyzen acknowledged. All of the crimes were committed at the same place—defendant’s home. All of the offenses involved similar types of physical conduct, and all involved similar victims—children who were members of defendant’s family. The state itself invoked those very similarities in arguing to consolidate the cases because the crimes alleged against defendant “are of the same or similar character and show a common scheme or plan.” Rookhuyzen handled the investigation as to all three of the victims. Indeed, the state alleged in its motion to consolidate that the crimes alleged against defendant “involve many of the same witnesses and arise from the same investigation.” Moreover, Rookhuyzen explained that, although his later questioning of defendant focused on K and L—and not A—his
To be sure, the offenses occurred at substantially different times, and, at least in some cases, that might weigh against concluding that the offenses are sufficiently factually related. But in this case, the difference in times does not alter what Rookhuyzen candidly acknowledged—that it was highly likely that his questioning would have some overlap with the charged offense.
The remedy for a violation of
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
Notes
We decline the invitation to adopt the New York rule. To begin with, amici are incorrect in asserting that this court has not previously had the opportunity to adopt the rule. The rule was explicitly identified, considered, and rejected in Sparklin. 296 Or at 90-91, 95 (“The prohibition placed on the state’s contact with a represented defendant do not extend to the investigation of factually unrelated criminal episodes.“). Aside from that, the New York Court of Appeals has more recently qualified its bright-line rule, indeed, to such an extent that its own members have recently complained that the rule now “is so complicated that it is almost incomprehensible” and that it “regularly produces unjust results.” People v. Lopez, 16 NY3d 375, 388, 947 NE2d 1155 (2011) (Smith, J., concurring); see generally Pamela S. Karlan, Discrete and Relational Criminal Representation: The Changing Vision of the Right to Counsel, 105 Harv L Rev 670, 679 (1992) (“[T]he New York Court of Appeals recently rejected the existing state right-to-counsel rule that the police could not subject a suspect represented on pending charges to interrogation concerning new, unrelated charges. The court saw an offender-specific, as opposed to an offense-specific, rule as excessively costly * * * [and one that] perversely gave more protection to the ‘common criminal’ already facing charges than to a ‘first-time arrestee.’“)