State v. Craigen

295 Or.App. 17

432 P.3d 274

STATE of Oregon, Plaintiff-Respondent,

v.George West CRAIGEN, Defendant-Appellant.

A158112

Court of Appeals of Oregon.

Argued and submitted August 23, 2017.

November 21, 2018

David O. Ferry, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Michael A. Casper, Assistant Attorney General, argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Lagesen, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

LAGESEN, P. J.

While facing four charges of felon in possession of a firearm (FIP), defendant shot and killed his neighbor, who defendant believed had set him up on two of the charges. After defendant was arrested, officers interrogated him mainly about the homicide, but also about the FIP charges, without first notifying the lawyer representing defendant on the FIP charges. The issue before us is whether the officers violated defendant’s rights under Article I, section 11, of the Oregon Constitution when they questioned him without notifying his lawyer and giving the lawyer an opportunity to attend the interrogation and, if so, the extent to which that constitutional violation requires the suppression in the homicide case of the statements that defendant made during the interrogation.

We conclude that, under State v. Prieto-Rubio , 359 Or. 16, 376 P.3d 255 (2016), 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. We conclude further that, under State v. Savinskiy , 286 Or. App. 232, 399 P.3d 1075, rev. allowed , 362 Or. 208, 407 P.3d 815 (2017) ; State v. Hensley , 281 Or. App. 523, 383 P.3d 333 (2016) ; State v. Beltran-Solas , 277 Or. App. 665, 372 P.3d 577 (2016) ; and State v. Staunton , 79 Or. App. 332, 718 P.2d 1379 (1986), the violation of defendant’s rights requires suppression of the statements that defendant made after the violation occurred. Because the trial court concluded otherwise, and the error was not harmless, we reverse and remand.

STANDARD OF REVIEW

We review the trial court’s denial of defendant’s motion to suppress for legal error. Hensley , 281 Or. App. at 525, 383 P.3d 333. In so doing, we take the facts as the trial court expressly or necessarily found them, so long as there is evidence to support those findings. Id . at 526, 383 P.3d 333.

FACTUAL AND PROCEDURAL BACKGROUND

In 2011, defendant was facing charges on four counts of felon in possession of a firearm. The state had brought two of the charges many years earlier, in 1991 and 1994,¹ and had brought the other two in 2011. Defendant retained an attorney, Gushwa, to represent him on those charges. Gushwa sent a notice to the district attorney’s office directing it to "[p]lease instruct all police officers and personnel of your office not to speak with the defendant without first obtaining written permission from me."

The trial court scheduled a status conference in that FIP case for December 30 of that year. That morning, defendant, who was out on bail, was waiting for his ride to court when he noticed that Carter, the owner of a nearby plumbing shop, was on defendant’s property, examining defendant’s preparations for building a fence. A short time later, after Carter had returned to his shop, defendant walked to the shop, pointed a handgun at Carter through a closed window, and fired eight times. Five bullets struck Carter, two of which were fatal. Defendant fled the scene and (according to defendant) hid in a nearby cave for two days.

In the meantime, defendant’s lawyer, Gushwa, was waiting for him to show up at the status conference on the FIP charges.

When defendant failed to appear, Gushwa told the court that, absent a "disastrous car wreck" that might explain his client’s absence, he planned to move to withdraw as counsel. After the hearing, Gushwa called defendant’s house. Brooks, who had been staying with defendant, answered the phone and put Gushwa on the phone with a detective, Guerrero, who was next door investigating the shooting. Although he had not yet filed a motion to withdraw as counsel in the FIP case, Gushwa told Guerrero that he had withdrawn from the FIP case and that, if he spoke with defendant, he would tell defendant that police wanted to talk to him.

Two days later, on New Year’s Day, defendant went to the home of Cossitt, a mutual friend of defendant and the victim. Cossitt called the police and they arrested defendant later that day. Detectives Gunter and Guerrero set up recording equipment and prepared to interrogate defendant. Both were aware of the FIP charges, but had been told that Gushwa had withdrawn, although Gushwa had not, in fact, withdrawn at the time. They gave defendant Miranda warnings and asked if he was willing to talk to them. Defendant initially said he was "not really" willing to talk but then immediately said they could ask him questions and signed a waiver form.

Although the detectives did not ask defendant about the FIP charges initially, defendant volunteered information about the 1991 and 1994 charges early in the interview. After defendant explained to the detectives that his primary line of work had been a specialized form of painting for military bases, Gunter asked if defendant had been required to obtain a special security clearance to do that work. Defendant explained that he had been, and that he had "passed every clearance," which is why it surprised him to find out that he still had warrants on the 1991 and 1994 charges. Defendant further explained that "what’s got me pissed off" was the fact that, when he originally was convicted on felony charges in 1986, the judge told him that the convictions would not affect his ability to own firearms. Then, "in '89 they changed the law where all felons can't have guns," but defendant did not find out about the change in the law until he wanted to go hunting in 1991 and an officer came to take his guns. Defendant also stated that the fact that he "love[d] to hunt" led to the additional charge in 1994.

After some additional discussion of defendant’s love of hunting, the detectives shifted the focus of the interview to the shooting of Carter. Gunter told defendant that the detectives knew what happened, "[s]o what we want to do with you today is just talk to you about why it happened." Defendant then explained to the officers how he had obtained the money for bail on the FIP charges, and that he had been planning to repay the person who had loaned him the money either by logging his property to get the money, or by selling the lender his house. Defendant told the officers that "I was going to sell the house to him but I didn't want to sell it," but that "my old lady is being a bitch and them folks brainwashed her some." Guerrero followed up on what defendant meant, at which point defendant explained his belief that the victim and his family had set him up on the 2011 charges:

"[Guerrero:] Who’s ‘them folks’?

"[Defendant:] The folks next door.

"[Guerrero:] The Carters?

"[Defendant:] Yeah. They set it up. That’s how I found out about all that shit.

"[Guerrero:] Set what up?

"[Defendant:] How to get me in jail and try to keep me there.

"[Guerrero:] Okay.

"[Defendant:] With the firearms."

At that point, Gunter took over questioning defendant. He asked defendant directly about how he had come into possession of the firearms underlying the 2011 FIP charges:

"[Gunter:] Did they give you the firearms? Where did you get those firearms?

"[Defendant:] They were in the house when my dad died.

"[Gunter:] And you just kind of inherited them?

"[Defendant:] Yeah. They were family guns.

"[Gunter:] Okay.

"[Defendant:] I took them up to a friend’s house, and then [the victim] fucking—his brother works for him—and [the victim] kind of wouldn't let [the friend] take them to another friend’s house. They wanted to keep them there so they could turn them into the cops so I could get more time."

At that point, Guerrero observed, "Oh, so they set you up that way." Defendant agreed that "[t]hat’s one way they did it."

Gunter and Guerrero continued the interview, further exploring with defendant his motive for shooting the victim. Defendant made a number of statements indicative of his state of mind at the time of the shooting, including that he was "going to shoot the son-of-a-bitch" if he was "going to do that much time" on the FIP charges; that he wished that the victim’s daughter would "have been there that day" because he "would have fed her some lead;" and that he had "[w]ent off just crazy" but was "[c]alm as fuck, though" at the time he went up to the window and shot through it. At several points during the interview, he also reiterated his belief that the victim had set him up on the 2011 FIP charges to ensure that defendant received a long prison sentence. And, when asked whether he would "take back what happened to" the victim if he could, defendant responded that it "would be hard to answer that question," under the circumstance.

Defendant was charged with, among other things, murder ( ORS 163.115 ) (Count 1), felon in possession of a firearm ( ORS 166.270 ), unlawful use of a weapon ( ORS 166.220 ), and obliteration or change of identification number on a firearm ( ORS 166.450 ).² He moved to suppress evidence of the statements that he made during his custodial interview, together with any derivative evidence, on the ground that it had been obtained in violation of his right to counsel under Article I, section 11. Defendant argued that, under the circumstances of this case, the homicide was sufficiently related to the FIP charges...