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Oregon Supreme Court: Right to Counsel Violated by Police Questioning Defendant About an Uncharged Crime in Connection With Charged Crime for Which Defendant Represented by Counsel

by Mark Wilson

The Supreme Court of Oregon vacated a murder conviction, holding that police questioning of a represented criminal defendant about an uncharged crime associated with the charged crime for which he had counsel violated his right to counsel under the Oregon Constitution. It also held that all evidence resulting from that violation should have been suppressed.

In 2011, George West Craigen was charged with four counts of Felon in Possession of a Firearm (“FIP”). He retained counsel, Gushwa, to represent him on those charges, and Gushwa sent notice of representation to the prosecutor, stating: “Please instruct all police officers and personnel of your office not to speak to the defendant without first obtaining written permission from me.”

When Craigen was scheduled to appear for a status conference on the FIP charges, he shot and killed his neighbor, Clark, on December 30, 2011. Two days later, detectives interrogated Craigen about the shooting but did not notify Gushwa because they mistakenly believed he no longer represented Craigen on the FIP charges. Gushwa later moved to withdraw, but he was still counsel of record when Craigen was interrogated.

Early in the interrogation, detectives asked why Craigen shot Carter. He said he believed Carter and his family had set him up on the FIP charges. A detective then asked about the FIP charges, including about how Craigen came to possess the firearms. Detectives continued to ask about the motive for shooting Clark, and Craigen replied several times that Carter had set him up on the FIP charges to ensure that he would serve a lengthy prison term.

After the interrogation, the State charged Craigen with murder and other offenses related to the shooting. Before trial, Craigen moved to suppress evidence stemming from the interrogation, arguing that the questioning violated his right to counsel under Article I, section 11, of the Oregon Constitution.

The trial court denied the motion to suppress, and the case proceeded to a jury trial. Craigen did not dispute that he shot Carter but asserted two mental defenses: insanity and extreme emotional disturbance. The defense offered evidence that Craigen has brain damage and a history of delusional thinking, including delusions about Carter. Although the two men had been friends, Craigen believed that Carter caused Craigen’s wife to leave him, plotted to have him put in jail, and intended to acquire his property. The State disputed Craigen’s mental defenses, playing a video of the interrogation, which it used to argue that the shooting was not a product of insanity or an extreme emotional disturbance.

The jury rejected Craigen’s mental defenses and found him guilty of murder and three other offenses. The trial court then sentenced him to life imprisonment with a 25-year minimum on the murder conviction.

The Oregon Court of Appeals reversed, holding that the trial court erred in denying Craigen’s motion to suppress. The court explained that under State v. Hensley, 383 P.3d 333 (Ore. 2016), and State v. Savinskiy, 399 P.3d 1075 (Ore. 2017), “if a defendant is interrogated in violation of his right to counsel under Article I, section 11, any evidence discovered as a result – including evidence of other crimes – must be suppressed unless the state demonstrates that the evidence was not the product of the constitutional violation.” 

The State appealed to the Oregon Supreme Court, where review was also pending in Savinskiy. The Supreme Court held that the questioning did not violate Savinskiy’s right to counsel because it concerned a “new, uncharged and ongoing conspiracy to illegally undermine the pending charges.” State v. Savinskiy, 441 P.3d 557, adhered to as modified on recon., 445 P.3d 307 (Ore. 2019) (“Savinskiy II”). The Court then granted the State’s petition for review in Craigen, vacated the Court of Appeals’ earlier decision, and remanded for reconsideration in light of Savinskiy II. 

On remand, the Court of Appeals considered whether the questioning violated Craigen’s right to counsel under Savinskiy II, ultimately concluding that Savinskiy II did not change the law in a way that affected its prior holding. It then adhered to its earlier decision that the detectives violated Craigen’s right to counsel by continuing to question him without notifying his counsel when it was reasonably foreseeable that doing so would lead to incriminating evidence on the FIP charges. The court also affirmed its holding that the trial court erred in failing to suppress the evidence resulting from the violation of Craigen’s right to counsel.

The Court began its analysis by noting that the right to counsel under Article I, section 11, includes the right in connection with both charged crimes as well as interrogations regarding certain uncharged crimes. State v. Sparklin, 672 P.2d 1182 (Ore. 1983); State v. Prieto-Rubio, 376 P.3d 255 (Ore. 2016); Savinskiy II.

Specifically, the issue in the present case involves police interrogation of a represented defendant about uncharged crimes. The Court stated that police interrogation of a defendant who is represented by counsel, but not present, about uncharged crimes violates the defendant’s right to counsel under Article I, section 11, when the uncharged crimes are related to the charged crimes. Sparklin

The Prieto-Rubio Court set forth the rule to determine whether a defendant’s right to counsel for charged crimes includes the right to counsel during questioning about uncharged crimes as follows: “[T]he 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.”  Without such a rule, the right to counsel provided for in the state Constitution would be circumvented, according to the Prieto-Rubio Court.

The Savinskiy II Court subsequently created a narrow exception to the Prieto-Rubio rule, which denies the benefit of that rule where police question a represented  “defendant about a new, uncharged and ongoing conspiracy to harm witnesses to a pending prosecution.” It explained that the right to counsel  “does not guarantee that the state will provide notice to a defendant’s attorney” in this specific circumstance. 

Applying the foregoing principles to the present case, the Court held that police questioning of Craigen violated the rule announced in Sparklin that “once an attorney is appointed or retained, there can be no interrogation of a defendant concerning the events surrounding the crime charged unless the attorney representing the defendant on that charge is notified and afforded a reasonable opportunity to attend.” Specifically, the interrogators asked him about the FIP offenses for which he was already represented by counsel, violating Sparklin. The narrow Savinskiy II exception does not apply to sanction the police questioning because there was no “ongoing conspiracy to harm witnesses.” 

The Court then turned to the issue of whether Craigen’s statements obtained in violation of his right to counsel must be suppressed. The Oregon Constitution mandates that both testimonial and physical evidence obtained in violation of a defendant’s constitutional rights cannot be used as evidence against him. State v. Jones, 435 P.2d 317 (Ore. 1967). The remedy for such violations  “is the exclusion of any prejudicial evidence obtained as a result of” the violation of a defendant’s constitutional rights. Prieto-Rubio.

Turning again to the present case, the Court stated that “like the Court of Appeals, we conclude that the trial court erred in denying defendant’s motion to suppress…. Because the trial court failed to suppress the evidence and because the admission of the evidence was prejudicial as to defendant’s murder conviction,” the Court held that “reversal of that conviction is required.”

Accordingly, the Court affirmed the decision of the Court of Appeals and remanded to the trial court for further proceedings consistent with its opinion. See: State v. Craigen, 524 P.3d 85 (Ore. 2023).



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