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State v. Savinskiy

Supreme Court of Oregon

May 23, 2019

STATE OF OREGON, Petitioner on Review,
v.
YEVGENIY PAVLOVICH SAVINSKIY, Respondent on Review.

          Argued and submitted May 5, 2018.

          On review from the Court of Appeals (CC 121059) (CA A154791). [*]

          Doug M. Petrina, Assistant Attorney General, Salem, argued the cause and filed the briefs for the petitioner on review. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Eric R. Johansen, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the brief for respondent on review. Also on the brief was Ernest G. Lannet, Chief Defender.

          Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, Nelson and Garrett, Justices. [**]

         [364 Or. 803] Case Summary: While defendant was incarcerated awaiting trial on pending charges, he solicited an informant to harm the prosecutor and two witnesses associated with those pending charges. The police secretly recorded defendant's conversations with the informant without alerting defendant's lawyer on the pending charges. When defendant was later tried on both the original charges and new conspiracy charges, he moved to suppress the conversations as obtained in violation of his Article I, section 11, right to counsel. The trial court suppressed the parts of the conversation related to the pending charges, but not those parts related to his plans to harm the prosecutor and witness. The Court of Appeals reversed as to the charges arising from the new plans and as to some of the original charges. Held: Defendant's Article I, section 11, right to counsel was not violated when the police informant questioned defendant about his new plan to harm the prosecutor and witnesses in his pending prosecution without alerting defendant's attorney who was retained to represent defendant on those pending charges.

         The decision of the Court of Appeals is reversed as to defendant's convictions for conspiracy to commit murder (Counts 17-19) and otherwise affirmed. The judgment of the trial court is reversed and remanded as to defendant's convictions for crimes charged in the original indictment but is otherwise affirmed.

         [364 Or. 804] FLYNN, J.

         While defendant was incarcerated and awaiting trial on pending criminal charges, law enforcement officers learned that defendant had solicited another inmate to harm the prosecutor and murder two of the anticipated witnesses for the prosecution. Without notifying the lawyer who was representing defendant on the pending charges, the officers arranged for the other inmate to secretly record defendant in a conversation about his new criminal activity, and the state later charged defendant with multiple new offenses arising out of that new criminal activity. The Court of Appeals held that the recorded questioning violated defendant's Article I, section 11, right to counsel "[i] n all criminal prosecutions," and precludes the state from using defendant's incriminating statements to convict him of the new offenses. We disagree. We conclude that defendant's Article I, section 11, right to counsel, which arose because of the initially pending charges, was not a right to limited police scrutiny of new criminal activity in which defendant was engaging to illegally undermine the pending charges.[1]

         I. BACKGROUND

         At the time of the recorded conversation, defendant was represented by counsel on multiple pending charges arising out of an earlier incident in which he engaged in a shootout with police at an Astoria motel, followed by an extended, high-speed car chase. When defendant's fellow inmate reported that defendant had offered him money and weapons to assault the prosecutor and to murder two of the state's witnesses, law enforcement officers used the information to obtain sealed, ex parte court orders that authorized them to record the conversations between defendant and the informant. During those recorded conversations, defendant discussed his plans for the new criminal activity, but he also discussed the pending case.

         [364 Or. 805] A grand jury later amended defendant's existing indictment to add charges for offenses arising out of the new criminal activity, including two counts of conspiracy to commit murder of "another human being who was a witness in a criminal proceeding, *** related to the performance of official duties of [the witness] in the justice system," and one count of conspiracy to commit first degree assault against the prosecutor.

         Before trial, defendant moved to suppress the evidence that the state obtained through the recorded conversations, arguing that the questioning violated his Article I, section 11, right to counsel because the officers had failed to notify defendant's attorney before directing the informant to question him. The trial court granted defendant's motion with respect to statements that defendant made about "anything related to" the original charges, on which he had been represented by counsel at the time of the questioning, but the court refused to suppress defendant's statements about the new criminal activity.

         The new and original charges were tried together, and the state relied on defendant's statements about the new criminal activity as evidence that he was guilty of all of the charged offenses. The jury convicted defendant of the charges arising out of the original criminal activity as well as of the conspiracy charges arising out of the new criminal activity.[2]

         On appeal, defendant assigned error to the trial court's ruling on the motion to suppress, renewing his argument that the state obtained his statements about the new criminal activity in violation of his Article I, section 11, right to counsel. While defendant's appeal was pending, this court decided State v. Prieto-Rubio, 359 Or. 16, 18, 376 P.3d 255 (2016), which held that the defendant's Article I, section 11, right to counsel protected him during [364 Or. 806] police questioning about other, uncharged criminal activity because it was "objectively reasonably foreseeable that the questioning [would] lead to incriminating evidence concerning the offense for which the defendant has obtained counsel."[3] Relying on Prieto-Rubio, the Court of Appeals agreed with defendant that the questioning violated his Article I, section 11, right to counsel, and concluded that the trial court's failure to suppress the resulting statements required reversal of defendant's convictions for both the new charges and some of the original charges.[4] State v. Savinskiy, 286 Or.App. 232, 234, 243-44, 399 P.3d 1075 (2017). We allowed the state's petition for review to consider whether the Court of Appeals correctly reversed defendant's convictions on the charges arising out of his new criminal activity.

         II. ANALYSIS

         On review, the state does not dispute that "it was reasonably foreseeable that questioning about defendant's new conspiracy crimes would incriminate him for the originally charged crimes."[5] Given that concession, defendant understandably argues that Prieto-Rubio supports the Court of Appeals' conclusions that the state violated defendant's right to counsel and that the resulting evidence must be suppressed.

         However, the question we ultimately must answer is whether Article I, section 11, guarantees a right to counsel during police questioning about the kind of new, uncharged [364 Or. 807] criminal activity in which defendant was engaged. Answering that question is more complicated than simply asking if the test that we articulated in Prieto-Rubio can be applied to the police questioning in this case.[6] In Prieto-Rubio, we were not called upon to consider whether Article I, section 11, protects a defendant from police inquiry into new criminal activity in progress, and we now conclude that the right does not extend that far.

         When construing a provision of the original Oregon Constitution, which includes the Article I, section 11, right to counsel, we consider "the text in its context, the historical circumstances of the adoption of the provision, and the case law that has construed it[, ]" with the goal of identifying "the meaning most likely understood by those who adopted the provision" and, in light of that meaning, identifying "relevant underlying principles that may inform our application of the constitutional text to modern circumstances." State v. Davis, 350 Or. 440, 446, 256 P.3d 1075 (2011) (citing Priest v. Pearce, 314 Or. 411, 415-16, 840 P.2d 65 (1992), and State v. Hirsch/Friend, 338 Or. 622, 631, 114 P.3d 1104 (2005)). Given the principles that underlie our modern understanding of the Article I, section 11, right to counsel, and given the nature of defendant's new criminal activity, we conclude that police were not required to provide notice to the attorney representing defendant on the pending charges before inquiring about his new, uncharged and ongoing conspiracy to illegally undermine the pending charges.[7]

         [364 Or. 808] A. The Text and Evolving Construction of the Article I, section 11, Right to Counsel

         Both Davis and Prieto-Rubio extensively considered the historical circumstances surrounding the adoption of Article I, section 11, and the case law construing it. As we explained in Prieto-Rubio, the Article I, section 11, guarantee of counsel "-like its federal counterpart, the Sixth Amendment to the federal constitution-was originally understood to apply only to the conduct of criminal trials." 359 Or at 24. That construction is not surprising given the text of that provision:

"In all criminal prosecutions the accused shall have the right to public trial by an impartial jury in the county in which the offen[s]e shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor."

Or. Const. Art. 1, § 11 (1857).[8] However, changes in the nature of criminal prosecutions and "recognition that a defendant's 'assistance' of counsel would be less than meaningful if it were limited to the trial itself eventually led to a "doctrinal shift." Prieto-Rubio, 359 Or at 24. See also Davis, 350 Or at 470-71 (explaining that the Supreme Court justified extension of the Sixth Amendment right to counsel to pretrial stages "by reference to concerns for fundamental fairness and a recognition that the realities of modern criminal procedure often make pretrial assistance of counsel essential to an accused's defense at trial"). Thus, this court eventually concluded that a person who is charged with a crime "is entitled 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."[9]State v. Sparklin, 296 Or. 85, 93, 672 P.2d 1182 (1983).

         [364 Or. 809] As Sparklin emphasizes, however, "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." Id. at 94. That focus on protecting a defendant's right to counsel at trial produces important limits on the protection that Article I, section 11, affords, as Sparklin highlights. The defendant in Sparklin was involved in an incident in Portland in which Mansell was beaten and had his automobile and credit cards stolen. Initially, however, the defendant was arrested in Eugene after using one of Mansell's stolen credit cards and was charged only for that offense. Id. at 87. Without notice to the attorney representing defendant on the credit-card offense, detectives in Portland interrogated the defendant about an unrelated murder and robbery of a different victim, Davidson, as well as about the assault on Mansell. Id.

         When the defendant was later prosecuted for the offenses against Davidson, he sought to suppress evidence from the interrogation as obtained in violation of his right to counsel under Article I, section 11. Id. at 92. The defendant argued "that representation by an attorney on one charge insulates [a] defendant from police questioning regarding any crime for which he may be a suspect, whether or not it stems from the incidents surrounding the crime charged." Id. at 94. But this court disagreed. Sparklin recognized that one jurisdiction-New York-had eliminated any offense-based distinction once the right to counsel arises, but we rejected that approach. Id. at 95 n 14. We explained that other courts to consider the issue had held that police interrogation does not violate a defendant's right to counsel "when the interrogation concerns factually unrelated crimes," and we adopted a similar test for Article I, section 11. Id. at 96.

         As Sparklin explains:

"It is the fairness of the 'criminal prosecution' which counsel's presence helps to ensure. For this reason the [A]rticle [364 Or. 810] 1, 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 95 (footnote omitted). This court proposed asking whether the activity under investigation was part of "the criminal episode in which the accused is charged" as the test for whether interrogation about an uncharged offense fits within the protection of the defendant's Article I, section 11, right to counsel on the charged offense. Id. Applying that limitation, Sparklin explained that the interrogation did not violate the defendant's right to counsel under Article I, section 11, "with regard to the unrelated Davidson case[.]" Id. at 98. But the court also emphasized: "Because defendant was represented by an attorney for the offenses against Steven Mansell, interrogation on this subject was improper[.]" Id.

         Although the court's statement about interrogation regarding the Mansell offenses-which were not at issue on appeal-was unnecessary to the court's decision, the statement was not just gratuitous. Rather, the juxtaposition serves to clarify the court's holding regarding the scope of the protection that Article I, section 11, extends to a person who is subject to police questioning. Sparklin's discussion of the Mansell offenses clarified that the right to counsel protects a defendant with respect to police questions about some uncharged offenses. However, Sparklin's holding with respect to the Davidson offenses clarified that a defendant's right to the assistance of counsel in the prosecution of pending criminal charges is not so broad that it covers questions about all uncharged criminal activity. Finally, the court's ability to harmonize the two propositions illustrates that, in a single interrogation, the right to counsel may extend protection for some purposes but not others, depending on the extent to which the question will lead to "incriminating evidence or statements for use in the prosecution" of the offense to which the right to counsel has attached. Id. at 93. Given those limitations, we have described Sparklin as clarifying that the Article I, section 11, right to counsel is "offense-specific[.]" State v. Gilmore, 350 Or. 380, 385, 256 P.3d 95 (2011).

         [364 Or. 811] We pause to emphasize that there is no dispute regarding the principle that a defendant's Article I, section 11, right to counsel on charged offenses shields the defendant from police inquiry into some uncharged criminal activity while erecting no barrier to police inquiry into other uncharged criminal activity. The issue in dispute is whether defendant's new criminal activity ...


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