Defendant appeals a judgment of conviction for: two counts of attempted murder (Counts 1 and 2), ORS 161.405(2)(a); one count of fleeing or attempting to elude a police officer while in a motor vehicle (Count 5), ORS 811.540(1); one count of identity theft (Count 6), ORS 165.800; one count of attempted possession of a silencer (Count 7), ORS 161.405 (2)(c); five counts of recklessly endangering another person (Counts 9 to 13), ORS 163.195; two counts of conspiracy to commit murder (Counts 17 and 18), ORS 161.450(2)(a); and one count of conspiracy to commit assault in the first degree (Count 19), ORS 161.450(2)(a). We initially affirmed the trial court without opinion. State v. Savinskiy,
On remand, we are asked to consider anew whether the trial court erred when it partially denied defendant’s motion to suppress. When denying the motion to suppress in part, the trial court concluded that the state did not violate defendant’s right to counsel under Article I, section 11, of the Oregon Constitution when defendant’s cellmate, who was acting on behalf of the state and without notice to defendant’s counsel, asked defendant about his involvement in new potential conspiracy crimes. At the time of defendant’s cellmate’s questioning, defendant had previously been arrested, charged, and retained counsel for crimes related to defendant’s participation in a shoot-out and police chase. Applying the Supreme Court’s reasoning in Prieto-Rubio, we hold that it was reasonably foreseeable that the informant’s questioning of defendant regarding defendant’s uncharged conspiracies would result in the discovery of incriminating information regarding charges for which defendant had already obtained counsel and, accordingly, reverse and remand defendant’s convictions that were affected by the trial court’s error in denying the motion to suppress and otherwise affirm.
We review the denial of a motion to suppress for legal error and defer to the trial court’s findings of historical fact if there is constitutionally sufficient evidence in the record to support them. State v. Plew,
Defendant was contacted by an officer from the Astoria Police Department at the Lamplighter Hotel in Astoria because the hotel staff had found suspicious items in his room. Defendant answered his door with a handgun, and, after initially failing to comply with the officer’s instructions to open his door, he became involved in a shootout with police. Escaping the shoot-out, defendant led law enforcement officers on an extended car chase through Clatsop County. The officers eventually caught defendant and charged him
Approximately three months after defendant was arrested and had retained counsel for his initial charges, defendant’s cellmate, Russell, contacted the two detectives who were investigating defendant’s charged conduct. In the detectives’ first interview with Russell, he discussed several statements that defendant had made to him about defendant’s pending charges as well as a number of new criminal conspiracies defendant was planning with Russell. Based on this information, the detectives decided to apply for a warrant to record conversations between Russell and defendant by having Russell wear a body wire. In addition to seeking information about defendant’s uncharged conspiracies, the probable cause affidavit in support of their warrant application stated, in part:
“[B]ecause of the aforementioned unsolicited information provided to * * * Russell by [defendant] during their incarceration at Clatsop County Jail * * * describing [defendant’s] actions and the events in an officer involved shooting with Astoria Police Department Officers * * * it is reasonable to believe that [defendant] may discuss or repeat the same previously mentioned details. Therefore, I am asking the Court that any conversations provided by [defendant] to * * * Russell, which are unsolicited and may relate to the crimes involving Attempted Aggravated Murder (ORS 163.095), Assault in the First Degree (ORS 163.185), Unlawful Use of a Weapon (ORS 166.220), and Unlawful Possession of a Firearm Silencer (ORS 166.272)—for which [defendant] has already been charged—be allowed in this request for intercepted oral communications.”
Based on the detectives’ application, a warrant was issued to record generally defendant’s conversations with Russell.
Prior to his first recorded conversation with defendant, Russell once again approached the detectives with information about defendant’s new criminal activities. During that additional meeting, Russell disclosed that defendant had conspired with Russell to kill a police officer and his ex-wife, both of whom defendant believed were likely to testify against him in his criminal trial. Russell also told the detectives that he and defendant ha,d conspired to severely injure the assistant district attorney prosecuting defendant’s case. Russell also provided the detectives with statements written by defendant regarding the new criminal conspiracies.
The detectives successfully recorded three conversations between Russell and defendant. Prior to each of Russell’s taped conversations with defendant, the detectives told Russell not to discuss defendant’s pending charges. The detectives wanted to limit the discussion to defendant’s new crimes. However, despite the detectives’ repeated warnings, Russell discussed defendant’s pending charges during each recording session.
After the detectives finished intercepting the conversations between Russell and defendant, defendant’s indictment was amended to add two charges of solicitation to commit aggravated murder (Counts 14 and 15) and one charge of solicitation to commit assault in the first degree (Count 16), as well as two counts of conspiracy to commit aggravated murder (Counts 17 and 18) and one count of conspiracy to commit assault in the first degree (Count 19). Defendant filed a motion to suppress, among other things, the statements he had made to Russell during their recorded conversations and the physical evidence obtained by the state as a result of those conversations, arguing that Russell’s questioning violated defendant’s Article I, section 11, right to counsel. The state opposed the motion, arguing that defendant’s Article I, section 11, right was not violated because the uncharged conduct that detectives were investigating through Russell was factually unrelated to defendant’s charged offenses.
The case proceeded to a jury trial, where defendant was convicted of 13 of the 19 charges brought against him. Defendant appealed. We affirmed without opinion. Savinskiy,
Article I, section 11, states, in part, “In all criminal prosecutions, the accused shall have the right * * * to be heard by himself and counsel * * * ” The Article I, section 11, right to counsel attaches after the state “ha[s] * * * initiated a criminal prosecution.” State v. Sparklin,
Article I, section 11, can also foreclose interrogation of a defendant without his or her attorney present when the interrogation is regarding uncharged conduct and occurs after the defendant has retained counsel for a previously charged offense, if the charged and uncharged conduct is “sufficiently related.”Prieto-Rubio,
In Preito-Rubio, the Supreme Court held that a reasonable person would foresee that questioning a defendant about two uncharged incidents of sexual abuse would elicit incriminating evidence of a third, previously charged incident of sexual abuse for which the defendant had already obtained counsel. Id. at 37-38. The court noted that the charged and uncharged conduct was committed at the same place, involved similar types of physical conduct, and involved similar victims. Id. at 37. Further, the court recognized that the detective investigating all three cases was the same, and that that detective admitted that it was “impossible to have a conversation with defendant and not have some overlap between the charged and uncharged offenses.” Id. (internal quotation marks omitted). The court also recognized that “the offenses occurred at substantially different times.” Id. at 38. However, the court concluded that
We came to a similar conclusion applying the Prieto-Rubio test in Hensley. In Hensley, the defendant was charged with being a felon in possession of a firearm after being seen with a firearm at a Plaid Pantry convenience store.
We begin by noting that no one disputes that defendant was “interrogated” by the state when he was questioned by Russell; therefore, we do not address that issue. Turning to the question of whether those interrogations were unlawful, we recognize that, as in Prieto-Rubio, defendant’s charged and uncharged conduct occurred at substantially different times. Further, we recognize that the offenses occurred in different locations, involved different physical conduct, and involved different victims. Regardless, based on critical overlapping evidence, we nonetheless conclude that, given the nature of defendant’s uncharged crimes, a questioner would have “reasonably foresee [n]” that interrogating defendant about those uncharged offenses would elicit incriminating evidence regarding his charged offenses. Prieto-Rubio,
Like the defendant’s charged and uncharged conduct in Hensley, defendant’s charged and uncharged conduct in this case involves overlapping evidence. Significantly, here, the evidence of defendant’s uncharged conduct was inherently incriminating evidence of defendant’s charged crimes. Russell was interrogating defendant about a conspiracy to murder witnesses and assault the prosecutor in defendant’s trial for his charged conduct. Because of the nature of those conspiracies, any evidence regarding those crimes is inherently incriminating evidence of defendant’s charged crimes. As the prosecutor in defendant’s case stated in his closing argument:
“The big part of this case, the big issue, is the conspiracy and the solicitation, the issue with * * * Russell. And the * * * Russell part of it explains the Lamplighter [charges]. Just ask yourselves, what person tries to cover up another incident? The kind of person that knew they did something wrong. Because why cover it up if he didn’t?”
We conclude that the amount of overlapping evidence between these two cases is so substantial that any questioner would have reasonably foreseen that interrogating defendant about his conspiracies would elicit incriminating evidence about his previously charged conduct, because any incriminating evidence that the interrogators obtained relating to the conspiracies would also be incriminating as to defendant’s original charges.
Overlapping evidence is not the only factor that convinces us that defendant’s Article I, section 11, right to counsel was violated during Russell’s interrogations of defendant. First, as in Prieto-Rubio, the detectives investigating defendant’s original charges were the same detectives who were investigating the new conspiracies. Further, as in Prieto-Rubio, the detectives’ investigation of defendant’s charged and uncharged crimes overlapped. That overlap is best demonstrated by this statement made by the detectives in their warrant application:
“[B]ecause of the aforementioned unsolicited information provided to * * * Russell by [defendant] during their incarceration at Clatsop County Jail * * * describing [defendant’s] actions and the events in an officer involved shooting with Astoria Police Department Officers * * * it is reasonable to believe that [defendant] may discuss or repeat the same previously mentioned details. Therefore, I am asking the Court that any conversations provided by [defendant] to * * * Russell, which are unsolicited and may relate to the crimes involving Attempted Aggravated Murder (ORS 163.095), Assault in the First Degree (ORS 163.185), Unlawful Use of a Weapon (ORS 166.220), and Unlawful Possession of a Firearm Silencer (ORS 166.272)—for which [defendant] has already been charged—be allowed in this request for intercepted oral communications.”
As that statement demonstrates, during their investigation of defendant’s uncharged conduct, the detectives were explicitly attempting to discover more information about his charged crimes. That statement also demonstrates that, like the detective in Prieto-Rubio, the detectives in this case foresaw that Russell’s interrogations were likely to reveal incriminating information . about defendant’s previously charged crimes.
As a result, based on all of the above factors, we conclude that, in this case, it was reasonably foreseeable to a person in the position of the questioner that questioning defendant would elicit incriminating information involving defendant’s charged offenses. Prieto-Rubio,
On remand, however, relying on a footnote in which the Supreme Court “express [es] no opinion” on the matter, the state argues that Prieto-Rubio does not apply to this case because Prieto-Rubio is an Article I, section 11, “use” case whereas this case is an Article I, section 11, “attachment” case. Id. at 38 n 5. That argument is unconvincing.
According to the state, a “use” case under Article I, section 11, “pertains to when interrogation on crimes for which the right to counsel has not attached can be used to prove crimes for which the right to counsel has attached.” (Emphasis and boldface in original.) In contrast, the state contends that, in an “attachment” case, the issue is whether a defendant’s Article I, section 11, “right to counsel attaches to an uncharged crime.” The state’s argument overstates the holding in Prieto-Rubio and ignores our case law.
As noted above, the Article I, section 11, right to counsel attaches only “as of the time of charging.” Prieto-Rubio,
As we have previously held, “[i]f a defendant is interrogated in violation of’ their Article I, section 11, right to counsel, “any evidence discovered as a result of that
The final question we must address is whether the trial court’s error was harmless. “We will not reverse a conviction on grounds of evidentiary error if there is little likelihood’ that the error affected the jury’s verdict.” Hensley,
Turning to defendant’s older crimes, we also conclude that the trial court’s failure to suppress the evidence obtained as a result of Russell’s interrogations likely affected the jury’s verdicts on Counts 1, 2, and 7—the attempted murder and attempted possession of a silencer charges. The state’s case surrounding those charges focused predominately on whether defendant had the requisite criminal intent to commit those crimes, as well as defendant’s and Russell’s credibility. As evidenced by the above-quoted portion of the prosecutor’s closing argument, the state relied on evidence of defendant’s conspiracies to prove that defendant had criminal intent when he initiated the shoot-out with police officers and when he attempted to possess a silencer. Further, the state also used the evidence obtained as a result of Russell’s interrogations to bolster Russell’s credibility, while impeaching defendant and undermining his claims that he did not know the two officers at his door at the Lamplighter Hotel were police officers before pointing his gun at them and that he did not know that possessing a silencer without a license was unlawful.
In contrast, we conclude that there was “little likelihood” that the trial court’s error affected the jury’s verdict on Counts 5, 6, 9, 10, 11, 12, and 13—the charges for fleeing or attempting to elude a police officer, identity theft, and reckless endangerment.
Consequently, because the trial court erred, and that error was harmful only as to some of defendant’s convictions, we reverse and remand only those convictions that were affected by the error and affirm defendant’s remaining convictions. See State v. Riddle,
Conviction on Counts 1, 2, 7,17,18, and 19 reversed and remanded; remanded for resentencing; otherwise affirmed.
Notes
In defendant’s supplemental brief, he appears to argue for the suppression of all of Russell’s trial testimony. However, not all of Russell’s testimony was based on his interrogation of defendant. It was also based on his conversations with defendant before he began acting as an agent of the state, during which defendant’s Article I, section 11, right to counsel had not attached. See State v. Smith,