State v. Craigen

311 Or.App. 478

489 P.3d 1071

STATE of Oregon, Plaintiff-Respondent,

v.George West CRAIGEN, Defendant-Appellant.

A158112

Court of Appeals of Oregon.

Submitted on remand December 9, 2019.

May 19, 2021

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and David O. Ferry, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General, filed the briefs for respondent.

Before Lagesen, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.

LAGESEN, P. J.

This case is before us on remand 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 previous decision and reverse and remand for a new trial.

The relevant facts are set forth in our two previous decisions in this matter: State v. Craigen , 295 Or. App. 17, 432 P.3d 274 (2018) ( Craigen I ), and State v. Craigen , 296 Or. App. 772, 439 P.3d 1048 (2019) ( Craigen II ). We set them forth here only as needed for context. In Craigen I , we reversed defendant's conviction for murder, Count 1, and remanded for a new trial on the ground that certain out-of-court statements by defendant had been obtained in violation of his Article I, section 11, of the Oregon Constitution right to counsel. Craigen I , 295 Or. App. at 19, 432 P.3d 274. In reaching that conclusion, we relied in part on our decision in State v. Savinskiy , 286 Or. App. 232, 399 P.3d 1075 (2017) ( Savinskiy I ), rev'd , 364 Or. 802, 441 P.3d 557 (2019), in determining the scope of suppression warranted to remedy the Article I, section 11, violation. Id. In Craigen II , on the state's petition for reconsideration asking us to reach an issue we had not addressed initially, we concluded that the trial court erred by ruling that evidence of defendant's depression and brain injury could not be considered in connection with defendant's extreme emotional disturbance (EED) defense, but had not erred in excluding other evidence that defendant sought to introduce regarding that defense. Craigen II , 296 Or. App. at 773, 439 P.3d 1048. Because we had previously determined that the Article I, section 11, error required reversal, we did not address whether that evidentiary error, in and of itself, was one that required reversal. Id. at 773-80, 439 P.3d 1048.

The state then petitioned for Supreme Court review. As noted, after deciding Savinskiy II , the Supreme Court vacated our prior decisions and remanded for reconsideration in light of Savinskiy II . On remand, the parties have submitted supplemental briefs addressing two issues: (1) how the Supreme Court's decision in Savinskiy II affects the Article I, section 11, analysis in this case; and (2) whether the evidentiary error related to the EED defense, in and of itself, presents grounds for reversal. In addition, following the decisions in Ramos v. Louisiana , 590 US. ––––, 140 S Ct. 1390, 206 L. Ed. 2d 583 (2020), and State v. Ulery , 366 Or. 500, 464 P.3d 1123 (2020), defendant filed a supplemental brief requesting that we reverse his conviction on Count 5, obliteration or change of identification number on firearm, ORS 166.450, because that conviction was based on a nonunanimous verdict. We address those issues in turn.

Article I, section 11. At issue in this case is whether the officers’ questioning of defendant about the shooting of his neighbor violated his right to counsel under Article I, section 11, when, at the time of the questioning, defendant was represented by counsel on pending charges of felon in possession of a firearm (FIP). Craigen I , 295 Or. App. at 19, 432 P.3d 274. Applying the standard set forth in State v. Prieto-Rubio , 359 Or. 16, 376 P.3d 255 (2016), we concluded that

"the officers violated defendant's rights under Article I, section 11, when they continued to question defendant without notifying his lawyer once it became apparent that there was a connection between the FIP charges and the homicide, when defendant disclosed that his motive for shooting the victim was his belief that the victim had set him up on the FIP charges."

Craigen I , 295 Or. App. at 19, 432 P.3d 274. That is because, at that point, it was "objectively reasonably foreseeable that the questioning [would] lead to incriminating evidence concerning the offense for which the defendant [had] obtained counsel," making the continued questioning violative of Article I, section 11, under the Prieto-Rubio standard. Prieto-Rubio , 359 Or. at 18, 376 P.3d 255 ; see also Craigen I , 295 Or. App. at 28-29, 432 P.3d 274 (applying standard). In fact, as we explained, "not only was it foreseeable at that point that further questioning might elicit incriminating information about the firearm charges, [the officer] explicitly questioned defendant about the firearms underlying those charges, eliciting incriminating information from defendant about how he came to possess those firearms," in direct violation of defendant's Article I, section 11, right to counsel on the firearm charges. Craigen I , 295 Or. App. at 28, 432 P.3d 274.

We concluded further that the Article I, section 11, violation requires suppression of all of defendant's statements after the violation, including statements about the yet-uncharged homicide, because the state had not demonstrated that it obtained those statements in a manner independent from the unlawful portion of the interrogation. Id. at 29-30, 432 P.3d 274. In determining the scope of suppression, we relied on our decision in Savinskiy I , noting that that particular issue was currently pending on review in the Supreme Court, and that, in its order allowing review, the court identified the question as, "[I]f the evidence is not admissible to prove the original crimes, is the evidence nonetheless admissible to prove the new crimes?" Id . at 30 & n. 6, 432 P.3d 274.

Although the Supreme Court allowed review on the scope-of-suppression issue in Savinskiy I , it ultimately did not decide it. Instead, the court concluded that, under the circumstances of that case, the questioning in connection with the uncharged offenses did not violate Article I, section 11, at all, notwithstanding the fact that it otherwise violated the Prieto-Rubio standard. Savinskiy II , 364 Or. at 820, 441 P.3d 557. As we understand the court's ruling, that was because of the ongoing nature of defendant's new criminal activity. The court explained that Prieto-Rubio was not dispositive because, "[i]n 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." Id. at 806-07, 441 P.3d 557. Addressing that question, the court ultimately held that the " Article I, section 11, right to counsel on pending charges does not guarantee that the state will provide notice to a defendant's attorney before questioning the defendant about a new, uncharged and ongoing conspiracy to harm witnesses to a pending prosecution." Id. at 819, 441 P.3d 557. Having concluded that there was no violation of the Article I, section 11, right, the court did not answer the scope-of-suppression question identified in its order allowing review, although the court held that, notwithstanding the absence of an Article I, section 11, violation, "the state may not use in the prosecution of [the charges on which the defendant had counsel] incriminating statements that the police obtained through questioning without notice to the counsel who was already defending against those charges." Id. at 820, 441 P.3d 557.

In their supplemental briefs on remand, the parties dispute whether Savinskiy II alters our previous analysis in this case. The state reads Savinskiy II broadly. It emphasizes that two factors that informed the analysis in Savinskiy II are present here: that defendant's new criminal conduct—homicide—was very different from the pending charges of felon in possession, and that defendant committed the new criminal conduct after the charges were pending. See Savinskiy II , 364 Or. at 813, 441 P.3d 557 (discussing those factors). Further, the state notes, similar to the case in Savinskiy II , defendant's new criminal conduct related to the pending charges, at least in defendant's mind, because defendant's motive for shooting the victim was his belief that the victim had set the defendant up for the felon-in-possession charges. The state urges us to conclude that those similarities mean that, under Savinskiy II , the questioning at issue here did not violate Article I, section 11.

Defendant, in response, reads Savinskiy II narrowly. He notes that the court did not displace the Prieto-Rubio standard. Rather, pointing to the court's framing of the issue before it and its articulation of its holding, he contends that Savinskiy II stands only for the proposition that the Article I, section 11, right to counsel does not require officers to notify the attorney representing a person on pending criminal charges before questioning a person about an in-progress criminal scheme to disrupt the prosecution of the pending charges. He reasons that, because his own new, uncharged criminal activity was not ongoing at the time, this case remains controlled by Prieto-Rubio , not Savinskiy II .

Although the state's arguments for extending the rule of law announced in Savinskiy II are not without some force, we conclude, for two reasons, that Savinskiy II has not changed the law in a way that alters our previous conclusion.

First, in reaching its conclusion in Savinskiy II , the court placed a great deal of emphasis on the fact that the rule it was announcing applied to questioning about a crime ...