State v. Savinskiy
| Decision Date | 23 May 2019 |
| Docket Number | CC 121059 (SC S065257) |
| Parties | STATE of Oregon, Petitioner on Review, v. Yevgeniy Pavlovich SAVINSKIY, Respondent on Review. |
| Court | Oregon Supreme Court |
364 Or. 802
441 P.3d 557
STATE of Oregon, Petitioner on Review,
v.
Yevgeniy Pavlovich SAVINSKIY, Respondent on Review.
CC 121059 (SC S065257)
Supreme Court of Oregon.
Argued and submitted May 5, 2018.
May 23, 2019
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.**
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.
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 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
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
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
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, 376 P.3d 255. 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. I, § 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, 376 P.3d 255. See also Davis , 350 Or. at 470-71, 256 P.3d 1075 (explaining that the Supreme...
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State v. Craigen
...from the Supreme Court, which vacated and remanded our previous decision for reconsideration in light of State v. Savinskiy , 364 Or. 802, 441 P.3d 557 (2019) ( Savinskiy II ). State v. Craigen , 365 Or. 721, 453 P.3d 551 (2019) ( Craigen III ). For the following reasons, we adhere to our p......
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State v. Allen
...Court allowed the state's petition for review and vacated our decision with an instruction to reconsider it in light of State v. Savinskiy , 364 Or. 802, 441 P.3d 557, adh'd. to as modified on recons. , 365 Or. 463, 445 P.3d 307 (2019), which issued after our first decision in this case. No......
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State v. Craigen
...of the Court of Appeals is vacated, and this case is remanded to the Court of Appeals for reconsideration in light of State v. Savinskiy, 364 Or. 802, 441 P.3d 557...
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State v. Allen, A157614(S066737)
...of the Court of Appeals is vacated, and this case is remanded to the Court of Appeals for reconsideration in light of State v. Savinskiy, 364 Or. 802, 441 P.3d 557...