State v. Savinskiy

• Decision Date: 14 June 2017
• Docket Number: A154791
• Citation: 286 Or.App. 232,399 P.3d 1075
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Yevgeniy Pavlovich SAVINSKIY, Defendant-Appellant.
• Court: Oregon Court of Appeals

286 Or.App. 232

399 P.3d 1075

STATE of Oregon, Plaintiff-Respondent,

v.Yevgeniy Pavlovich SAVINSKIY, Defendant-Appellant.

A154791

Court of Appeals of Oregon.

Submitted on remand July 27, 2016.

June 14, 2017

Peter Gartlan, Chief Defender, and Eric Johansen, Deputy Public Defender, Office of Public Defense Services, filed the opening brief for appellant. On the supplemental brief were Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Eric Johansen, Deputy Public Defender.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Doug M. Petrina, Assistant Attorney General, filed the answering brief for respondent. On the supplemental briefs were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Doug M. Petrina, Assistant Attorney General.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

SHORR, J.

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 , 272 Or.App. 664, 358 P.3d 1008 (2015), vac'd and rem'd , 359 Or. 847, 383 P.3d 847 (2016). Defendant petitioned for review, and the Supreme Court vacated our decision and remanded the case to us for reconsideration in light of State v. Prieto-Rubio , 359 Or. 16, 376 P.3d 255 (2016).

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 , 255 Or.App. 581, 583, 298 P.3d 45 (2013). The relevant facts are not disputed for purposes of this appeal.

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 hand-gun, and, after initially failing to comply with the officer's instructions to open his door, he became involved in a shoot-out 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 with two counts of attempted aggravated murder (Counts 1 and 2), two counts of attempted assault in the first degree (Counts 3 and 4), one count of attempting to elude police (Count 5), one count of identity theft (Count 6), one count of possession of a firearm silencer (Count 7), one count of attempted possession of a destructive device (Count 8), and five counts of recklessly endangering another person (Counts 9 to 13). Defendant was arraigned and retained an attorney to represent him on those charges.

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 had 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 trial court granted defendant's motion to suppress in part. It suppressed all conversations about defendant's previously charged crimes, but allowed the admission of defendant's statements regarding his new crimes, as well as the physical evidence gathered as a result of Russell's interrogations. In its order, the trial court noted that "the original charges * * * were months before the later charges arose" and that, "[o]ther than defendant being in jail on the [charged offenses], there is no overlapping evidence" between the two sets of charges.

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 , 272 Or.App. 664, 358 P.3d 1008. Defendant petitioned the Supreme Court for review, and, by order, the Supreme Court vacated our decision and remanded the case in light of its decision in Prieto-Rubio . On remand, we are asked to decide the limited issue of whether, in light of the Supreme Court's decision in Prieto-Rubio , defendant's right to counsel under Article I, section 11, was violated when Russell asked defendant about his then-uncharged conspiracy crimes at the request of the investigating detectives.

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 , 296 Or. 85, 92, 672 P.2d 1182 (1983) (internal quotation marks omitted). That right attaches to " ‘certain evidence-gathering processes which are deemed critical stages of the prosecution as an extension of a defendant's right to...