State v. Potter

Citation245 Or.App. 1,260 P.3d 815
Decision Date10 August 2011
Docket Number080331177,A142243.,080431933; A142227 (Control)
PartiesSTATE of Oregon, Plaintiff–Respondent,v.Daniel Jay POTTER, Defendant–Appellant.
CourtCourt of Appeals of Oregon


Kenneth A. Kreuscher, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.Shannon Terry Reel, Assistant Attorney General, argued the cause for respondent. On the brief were John R. Kroger, Attorney General, David B. Thompson, Interim Solicitor General, and Stacey RJ Guise, Senior Assistant Attorney General.Before BREWER, Chief Judge, and EDMONDS, Senior Judge.BREWER, C.J.

In these cases, which were consolidated for trial and appeal, defendant was convicted of numerous counts of identity theft. ORS 165.800. In Case Number 080331177 (“the APF case”), defendant was found guilty of one count of identity theft; in Case Number 080431933 (“the BTS case”), defendant was found guilty of six counts of identity theft.1 On appeal, he argues that the trial court should have suppressed evidence of certain statements he made because they were the result of police interrogation conducted in violation of his right to counsel under Article I, section 11, of the Oregon Constitution. For the reasons explained below, we agree, and therefore reverse and remand.

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 sufficient evidence to support them. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). The pertinent underlying facts are not in dispute. On March 11, 2008, defendant's brother, Edward Lane, attempted to cash a forged check drawn on the account of BTS Container Services (BTS). Lane became nervous and fled the bank where he was attempting to cash the check, leaving the check, as well as his identification, behind.

On March 12, 2008, defendant attempted to cash a forged check drawn on the account of Atlantic & Pacific Freightways (APF). The teller believed that the check was fraudulent and called the police, who arrived and arrested defendant. Shortly thereafter, one of defendant's accomplices arrived at the same bank and attempted to cash another fraudulent APF check; he also was arrested.

Detective Glass was assigned to investigate the crimes involving the fraudulent APF checks. Defendant was arraigned in the APF case on March 13, 2008, and counsel was appointed for him. He remained in custody on the APF case until March 27. Meanwhile, on March 26, Lane returned to the first bank where he had attempted to cash the BTS check on March 11. Lane was arrested at the scene, and Detective Malanaphy questioned Lane while he was in custody. Lane told Malanaphy that defendant had created the fraudulent BTS check, using as a template a legitimate check that defendant had received from BTS. When Malanaphy went to defendant's home to arrest him, defendant's wife told him that defendant already was in custody. Malanaphy talked to defendant's wife “about defendant's activities,” and she gave him a computer hard drive that had been hidden in a heating vent in the house.

Malanaphy learned from police records about the pending charges in the APF case, and he contacted Detective Glass, who was stationed at a different precinct. Glass told Malanaphy that she had arrested defendant for identity theft, based on his creation of fraudulent APF checks using a computer. Glass's investigation had uncovered information concerning two additional counterfeit BTS checks, so she provided that information to Malanaphy for purposes of his investigation.

On March 27, Malanaphy and Glass went together to defendant's house and questioned defendant's wife about some of his accomplices. They found out that defendant was scheduled to be released from jail that day. Malanaphy returned alone to defendant's house again on March 28 and told defendant that he would like to talk to him. Before questioning defendant, Malanaphy gave him Miranda warnings. Malanaphy's specific questions related to the fraudulent BTS checks. Malanaphy did, however, encourage defendant to reveal the names of his accomplices in an effort to solve other possible crimes. Defendant acknowledged having used a computer to create fraudulent checks, and he also admitted giving one of those checks to Lane.

Before trial, defendant moved pursuant to Article I, section 11, to suppress the statements that he had made to Malanaphy on March 28, arguing that, because he had invoked his right to counsel in the APF case, Malanaphy was required to contact defendant's attorney before attempting to interview him on a factually related matter. The prosecutor replied that, because the facts of the APF case and the BTS case were not “inextricably intertwined,” and Malanaphy had only questioned defendant about the BTS case, the evidence need not be suppressed. The court denied defendant's motion, stating “that they're not inextricably intertwined.”

After a bench trial, the court convicted defendant of identity theft in both cases. On appeal, defendant reiterates his Article I, section 11, argument, to which the state responds that the trial court correctly denied the motion based on its findings that the facts underlying the two cases were not “inextricably intertwined.” We conclude that the state has misunderstood one of our prior cases and that the proper inquiry is not whether the cases are “inextricably intertwined,” but, rather, whether the cases are “factually unrelated.”

In State v. Sparklin, 296 Or. 85, 672 P.2d 1182 (1983), the defendant was arrested in Eugene for using a stolen credit card belonging to Mansell. After the defendant had been arraigned and provided with appointed counsel, Portland detectives interrogated him about an assault and robbery during which Mansell's credit cards were stolen. The detectives also questioned the defendant on “a factually unrelated murder and robbery in Portland of a man named Davidson for which defendant was tried and convicted in this case.” 296 Or. at 87, 672 P.2d 1182 (emphasis added). The defendant asserted that the information gleaned during the interview concerning the Davidson murder should have been suppressed.

The court began with the basic proposition that Article I, section 11, provides that, “once a person is charged with a crime he or she 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.” Id. at 93, 672 P.2d 1182. Thus, after a person has been charged and afforded counsel, “there can be no interrogation of a defendant concerning the events surrounding the crime charged without notification of the attorney. Id. (emphasis added).

After discussing the origins of the Article I, section 11, right, the court stated:

“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 95, 672 P.2d 1182 (emphasis added; internal quotation marks omitted; footnote omitted).

Before we turn to a discussion of what “factually unrelated” means, we must briefly pause to examine the court's use of the term “criminal episode” in the above-quoted material. “Criminal episode” is a term that, at this point in time, has been used in so many diverse statutory and constitutional contexts within the criminal law that its precise meaning in any given context, much less its origins, is not always clear. Suffice it to say that, at the time the court wrote Sparklin, the court had most often been grappling with the phrase in the context of statutory and constitutional former jeopardy. See, e.g., State v. Hamilton, 291 Or. 283, 291, 634 P.2d 208 (1981) (discussing statutory former jeopardy and the definition of “criminal episode” contained in ORS 131.505(4)); State v. Brown, 262 Or. 442, 457–58, 497 P.2d 1191 (1972) (noting not-yet-enacted definition of “criminal episode” later enacted as ORS 131.505(4), and concluding that, for purposes of former jeopardy provisions of Article I, section 12, multiple prosecutions are barred if (1) the charges arise out of the same act or transaction, and (2) the charges could have been tried in the same court, and (3) the prosecutor knew or reasonably should have known of the facts relevant to the second charge at the time of the original prosecution). But as the court explained in a different context, the “criminal episode” and “same act or transaction” issue had arisen in numerous interrelated areas—not merely with regard to how many prosecutions may be brought, but also involving how many offenses may be separately charged and, if separately charged, whether verdicts must merge or sentences must be imposed concurrently. State v. Cloutier, 286 Or. 579, 584–85, 596 P.2d 1278 (1979).2

With that background in mind, we return to the court's statement in Sparklin. As an initial matter, we note that we cannot simply take at face value the court's statement that the Article I, section 11, right “is specific to the criminal episode in which the accused is charged” to mean that the prosecutor's initial decision to bring the charges in two separate indictments (and, for example, later move to consolidate them for trial as the prosecutor did here) somehow defines or limits the scope of the Article I, section 11, right. Sparklin, 296 Or. at 85, 672 P.2d 1182. Thus, the focus must be on whether the charges, regardless of how the case was initiated, pertain to factually unrelated criminal episodes.” Id. (emphasis added).

In Spar...

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  • State v. Burns
    • United States
    • Oregon Court of Appeals
    • November 14, 2013
    ...within the criminal law that its precise meaning in any given context, much less its origins, is not always clear.” State v. Potter, 245 Or.App. 1, 6, 260 P.3d 815 (2011), rev. den.,351 Or. 586, 274 P.3d 857 (2012); see also State v. Bryant, 245 Or.App. 519, 522, 263 P.3d 368 (2011) (“[T]he......
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