and submitted August 23, 2017
Umatilla County Circuit Court CF140169; Russell B. West,
O. Ferry, Deputy Public Defender, argued the cause for
appellant. Also on the briefs was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Offce of Public Defense
Michael A. Casper, Assistant Attorney General, argued the
cause for respondent. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman, Solicitor
Lagesen, Presiding Judge, and DeVore, Judge, and Garrett,
appeals his convictions for murder, felon in possession (FIP)
of a firearm, unlawful use of a weapon, and obliteration or
change of identification number on a firearm. After defendant
was arrested, officers interrogated him mainly about the
homicide, but also about the FIP charges that defendant had
retained counsel for. Defendant assigns error to the trial
court's denial of his motion to suppress statements made
during that interrogation. Defendant argues that officers
violated his rights under Article I, section 11, of the
Oregon Constitution when they questioned him without first
notifying his lawyer and giving his lawyer an opportunity to
attend the interrogation. Held: The trial court erred.
Under State v. Prieto-Rubio, 359 Or 16, 376 P.3d 255
(2016), the officers violated defendant's rights under
Article I, section 11, when they continued questioning him
without notifying his lawyer once it had become apparent that
there was a connection between the FIP charges and the
homicide, when defendant disclosed that his motive for
shooting the victim was his belief that [295 Or.App. 18] the
victim had set him up on the FIP charges. The violation of
defendant's rights required suppression of the statements
that defendant made after the violation occurred.
Or.App. 19] LAGESEN, P. J.
facing four charges of felon in possession of a firearm
(FIP), defendant shot and killed his neighbor, who defendant
believed had set him up on two of the charges. After
defendant was arrested, officers interrogated him mainly
about the homicide, but also about the FIP charges, without
first notifying the lawyer representing defendant on the FIP
charges. The issue before us is whether the officers violated
defendant's rights under Article I, section 11, of the
Oregon Constitution when they questioned him without
notifying his lawyer and giving the lawyer an opportunity to
attend the interrogation and, if so, the extent to which that
constitutional violation requires the suppression in the
homicide case of the statements that defendant made during
conclude that, under State v. Prieto-Rubio, 359 Or.
16, 376 P.3d 255 (2016), the officers violated
defendant's rights under Article I, section 11, when they
continued to question defendant without notifying his lawyer
once it became apparent that there was a connection between
the FIP charges and the homicide, when defendant disclosed
that his motive for shooting the victim was his belief that
the victim had set him up on the FIP charges. We conclude
further that, under State v. Savinskiy, 286 Or.App.
232, 399 P.3d 1075, rev allowed, 362 Or. 208 (2017);
State v. Hensley, 281 Or.App. 523, 383 P.3d 333
(2016); State v. Beltran-Solas, 277 Or.App. 665, 372
P.3d 577 (2016); and State v. Staunton, 79 Or.App.
332, 718 P.2d 1379 (1986), the violation of defendant's
rights requires suppression of the statements that defendant
made after the violation occurred. Because the trial court
concluded otherwise, and the error was not harmless, we
reverse and remand.
review the trial court's denial of defendant's motion
to suppress for legal error. Hensley, 281 Or.App. at
525. In so doing, we take the facts as the trial court
expressly or necessarily found them, so long as there is
evidence to support those findings. Id. at 526.
Or.App. 20] FACTUAL AND PROCEDURAL BACKGROUND
2011, defendant was facing charges on four counts of felon in
possession of a firearm. The state had brought two of the
charges many years earlier, in 1991 and 1994, and had brought
the other two in 2011. Defendant retained an attorney,
Gushwa, to represent him on those charges. Gushwa sent a
notice to the district attorney's office directing it to
"[p]lease instruct all police officers and personnel of
your office not to speak with the defendant without first
obtaining written permission from me."
trial court scheduled a status conference in that FIP case
for December 30 of that year. That morning, defendant, who
was out on bail, was waiting for his ride to court when he
noticed that Carter, the owner of a nearby plumbing shop, was
on defendant's property, examining defendant's
preparations for building a fence. A short time later, after
Carter had returned to his shop, defendant walked to the
shop, pointed a handgun at Carter through a closed window,
and fired eight times. Five bullets struck Carter, two of
which were fatal. Defendant fled the scene and (according to
defendant) hid in a nearby cave for two days.
meantime, defendant's lawyer, Gushwa, was waiting for him
to show up at the status conference on the FIP charges. When
defendant failed to appear, Gushwa told the court that,
absent a "disastrous car wreck" that might explain
his client's absence, he planned to move to withdraw as
counsel. After the hearing, Gushwa called defendant's
house. Brooks, who had been staying with defendant, answered
the phone and put Gushwa on the phone with a detective,
Guerrero, who was next door investigating the shooting.
Although he had not yet filed a motion to withdraw as counsel
in the FIP case, Gushwa told Guerrero that he had withdrawn
from the FIP case and that, if he spoke with defendant, he
would tell defendant that police wanted to talk to him.
days later, on New Year's Day, defendant went to the home
of Cossitt, a mutual friend of defendant and the [295 Or.App.
21] victim. Cossitt called the police and they arrested
defendant later that day. Detectives Gunter and Guerrero set
up recording equipment and prepared to interrogate defendant.
Both were aware of the FIP charges, but had been told that
Gushwa had withdrawn, although Gushwa had not, in fact,
withdrawn at the time. They gave defendant Miranda
warnings and asked if he was willing to talk to them.
Defendant initially said he was "not really"
willing to talk but then immediately said they could ask him
questions and signed a waiver form.
the detectives did not ask defendant about the FIP charges
initially, defendant volunteered information about the 1991
and 1994 charges early in the interview. After defendant
explained to the detectives that his primary line of work had
been a specialized form of painting for military bases,
Gunter asked if defendant had been required to obtain a
special security clearance to do that work. Defendant
explained that he had been, and that he had "passed
every clearance," which is why it surprised him to find
out that he still had warrants on the 1991 and 1994 charges.
Defendant further explained that "what's got me
pissed off" was the fact that, when he originally was
convicted on felony charges in 1986, the judge told him that
the convictions would not affect his ability to own firearms.
Then, "in '89 they changed the law where all felons
can't have guns," but defendant did not find out
about the change in the law until he wanted to go hunting in
1991 and an officer came to take his guns. Defendant also
stated that the fact that he "love[d] to hunt" led
to the additional charge in 1994.
some additional discussion of defendant's love of
hunting, the detectives shifted the focus of the interview to
the shooting of Carter. Gunter told defendant that the
detectives knew what happened, "[s]o what we want to do
with you today is just talk to you about why it
happened." Defendant then explained to the officers how
he had obtained the money for bail on the FIP charges, and
that he had been planning to repay the person who had loaned
him the money either by logging his property to get the
money, or by selling the lender his house. Defendant told the
officers that "I was going to sell the house to him but
I didn't want [295 Or.App. 22] to sell it," but that
"my old lady is being a bitch and them folks ...