State v. Prieto-Rubio
| Decision Date | 07 April 2016 |
| Docket Number | CA A152030 (Control, A152033,CC 11693CR, 112523CR,SC S062344). |
| Parties | STATE of Oregon, Petitioner on Review, v. Jesus R. PRIETO–RUBIO, Respondent on Review. |
| Court | Oregon Supreme Court |
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.**
, J.
After a defendant has been charged with a crime and the right to counsel has attached, Article I, section 11, of the Oregon Constitution
prohibits the police from asking the defendant about that crime without first notifying his or her lawyer. State v. Randant, 341 Or. 64, 71–73, 136 P.3d 1113 (2006). The issue in this case is the extent to which that same constitutional provision prohibits the police from questioning a represented defendant charged with a crime about other, uncharged offenses. Defendant argues that police violate the right to counsel by questioning about other, uncharged offenses if those matters were in any way “factually related” to the crime for which he had obtained counsel. According to defendant, that is what happened in this case, and so the trial court should have suppressed certain statements that he made to police without the assistance of counsel. The state argues that defendant relies on the wrong test. In the state's view, police who question a defendant about other matters violate that defendant's right to counsel only if those other matters are part of the same “criminal episode” for which the defendant obtained counsel. According to the state, police are free to question a defendant about matters not concerning the charged crime or the events surrounding that crime, and, because that is what happened in this case, the trial court correctly denied defendant's motion to suppress. The Court of Appeals agreed with defendant. State v. Prieto–Rubio, 262 Or.App. 149, 324 P.3d 543 (2014).
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.
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 other children had come to defendant's home. Defendant mentioned another child, K, but only by first name. The state ultimately charged defendant with first-degree sexual abuse of A, alleging that the abuse occurred “on or between August 7, 2011 [and] August 8, 2011.” Defendant retained counsel to defend him on that charge.
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 two 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 ORS 132.560(1)(b)(A) and (C)
(grounds for consolidation). The trial court granted the state's motion.
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 Article I, section 11, of the Oregon Constitution
. Defendant argued that Rookhuyzen knew that he already had retained counsel and yet failed to notify counsel before conducting the interview. In defendant's view, even though he had obtained counsel to defend him only on the charge related to A, under State v. Sparklin, 296 Or. 85, 672 P.2d 1182 (1983), the detective was not permitted to question him about K and L because the incidents involving those victims was factually related to the incident involving A.
At the hearing on defendant's motion, Rookhuyzen testified about his interview of defendant regarding K and L.
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 questioning did not violate that right because the interview focused on the charges involving K and L, which involved different times and different victims:
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, 324 P.3d 543
. Citing this court's decision in Sparklin, the court noted that the right to insist on the presence of counsel, however,...
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