State v. Greenwood

548 P.3d 831

332 Or.App. 166

STATE of Oregon, Plaintiff-Respondent,

v.Shawn Quentin GREENWOOD, Defendant-Appellant.

A177025

Court of Appeals of Oregon.

Argued and Submitted June 5, 2023

April 24, 2024

Baker County Circuit Court, 20CR02558; Matthew B. Shirtcliff, Judge.

Emily P. Seltzer, 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.

Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Shorr, Presiding Judge, and Mooney, Judge, and Pagan, Judge.

MOONEY, J.

₁₆₈Defendant appeals a judgment of conviction for criminally negligent homicide, ORS 163.145, fleeing or attempting to elude a police officer, ORS 811.540, and first-degree burglary, ORS 164.225, entered after conditional no-contest pleas. He assigns error to the trial court’s denial of his pretrial motion to dismiss, arguing that "an irrebuttable and conclusive presumption of prejudice" arose when the state violated his state and federal constitutional right to counsel by "intrud[ing] upon [his] attorney-client privilege," when the lead detective listened to recordings of defendant’s phone conversations with his attorney. Alternatively, defendant argues that the state bore the burden to show that the purposeful intrusion did not prejudice him and that the state failed to meet that burden. Defendant emphasizes that the calls "contained discussion of trial strategy," that the intrusion was intentional, and that the detective who committed the intrusion had been "involved in every aspect of a lengthy and wide-ranging criminal investigation, and * * * worked closely with other officers and with the prosecutor." Defendant contends that because the lead detective’s role was "central" and her conduct "egregious and intentional," the state’s case was "irreparably tainted" and dismissal was required.

We conclude that the state violated defendant’s constitutional right to counsel when the lead detective intentionally listened to several recorded phone conversations between defendant and his attorney, which included privileged communications between them about trial strategy. We conclude, further, that a rebuttable presumption of prejudice arose once defendant made a prima facie showing that the violation occurred, that it was intentional, and that it resulted in the disclosure of defense trial strategy. The burden then shifted to the state to show, by clear and convincing evidence, that defendant was not prejudiced by the violation. As we will explain, the state did not meet its burden to rebut the presumption of prejudice as to those charges that were added after the violation occurred (Counts 7 and 8). We, thus, conclude that the trial court erred when it declined to dismiss those two counts. But, as we will also explain, ₁₆₉the state did not have the opportunity to develop a factual record addressing the correct legal question with respect to the charges on which defendant had already been indicted before the violation occurred. Our disposition is intended to allow the state that opportunity should defendant opt to withdraw his plea.

We reverse and remand the judgment for the trial court to:

1. Enter a judgment of dismissal on Counts 7 and 8;

2. Allow defendant an opportunity to withdraw his plea pursuant to ORS 135.335(3); and

3. If defendant does withdraw his plea, afford the state an opportunity to prove, by clear and convincing evidence, that defendant was not prejudiced by the state’s violation of defendant’s constitutional right to counsel with respect to Counts 1 through 6.

I. THE FACTS

A. The Shooting and the Arrest

The pertinent facts are not disputed. On January 13, 2020, law enforcement officers responded to reports of a shooting at the Baker Land Management building. Officers discovered two victims—a man with a gunshot wound to his hand and a deceased woman. Defendant was arrested that same day, lodged at the Baker County Jail (the jail), and charged by district attorney’s information with two counts of second-degree assault. The information was amended the next day to add a count of second-degree murder.

B. The Indictments

Defendant was charged by indictment dated January 23, 2020, with two counts of second-degree assault, one count of second-degree murder, and one count of fleeing or attempting to elude a police officer. The indictment was amended on March 19, 2020, to add one count of solicitation to commit murder. In April 2020, the court extended the grand jury’s term to allow the state more time "to examine other potential charges relating to this case." On September 9, 2020, the second amended indictment was filed adding a count of first-degree assault. The indictment was amended ₁₇₀again on October 21, 2020, to add one count of first-degree murder, and again, on February 10, 2021, to add one count of first-degree burglary. The lead detective who listened to the recorded jail calls testified before the grand jury before each indictment was issued.

C. The Jail’s Telmate System

The Baker County Sheriff’s Office (the sheriff’s office) operates a software system known as Telmate that enables it to monitor and record telephone calls placed by inmates. Lieutenant Duby of the Baker City Police Department had direct access to Telmate through a password-protected account that the sheriff’s office assigned to him. Duby shared his access credentials with Detectives Regan and Sells, who were responsible for listening to jailhouse calls and preparing reports for Duby’s review.

Jail staff have the ability to block designated phone numbers from Telmate’s recording function. Attorney phone numbers are generally blocked to ensure that conversations between inmates and their attorneys are not monitored or recorded. For unknown reasons, the phone number for defendant’s attorney had never been properly entered into the system as a blocked number. Defendant called his attorney several times using that unblocked number.

D. The Recorded Calls

In November 2020, defendant asked his attorney to determine whether any calls that took place between the two of them while he was lodged at the jail had been recorded. Corporal D. Lefever confirmed that five such calls had, in fact, been recorded. Lefever made two copies of the recorded calls, and one CD was turned over to defense counsel and the other to Sheriff Ash. Ash testified that although he intended to deliver his copy to the prosecutor’s office, he did not do so. He held that copy in his desk, where it remained for approximately eight months.

Based on conversations with Telmate, the sheriff’s office initially reported that the recorded calls had not been listened to or otherwise accessed. But by June 2021, Corporal M. Lefever confirmed that several of the calls ₁₇₁between defendant and his attorney had been accessed through Duby’s Telmate credentials on September 14, 2020. When the prosecutor was told that there were recorded calls between defendant and his attorney and that the calls had been accessed, he questioned Duby, Sells, and Regan, each of whom denied listening to the calls. The prosecutor made a report to the Department of Justice and the Oregon State Police, and an investigation was conducted. It was determined that Regan, the lead detective on defendant’s case, had accessed the calls from her computer.

E. The Lead Detective’s Role

In her role as lead detective, Regan gathered crime scene evidence, drafted search warrants, and interviewed witnesses. She worked with, and reported to, Duby and the prosecutor. The criminal investigation was ongoing at the time Regan listened to the calls. Regan did not tell Duby or the prosecutor that she had listened to the recorded phone calls, and she did not report the content of those calls to either of them. Detective Sells explained that although they were permitted to listen to and monitor calls that defendant placed while he was in jail, they were not permitted to monitor calls between defendant and his attorney. Sells testified that he remembered Regan "mentioning she had heard an attorney phone call," but during that conversation, Regan stated that she "went to the next call." They did not discuss the call further and he assumed that the access had been inadvertent.¹

II. THE TRIAL COURT PROCEEDINGS

Defendant filed a motion to dismiss and to suppress evidence, asserting that his state and federal constitutional right to counsel had been violated. Relying on State v. Russum, 265 Or.App. 103, 333 P.3d 1191, rev den, 356 Or. 575, 342 P.3d 88 (2014), defendant argued that a presumption of prejudice arose from the violation of his right to counsel. He argued further that the presumption of prejudice should be deemed conclusive because the violation was intentional and because it was carried out by the lead detective on the case. ₁₇₂He argued that, even if the presumption was rebuttable, the state could not meet its burden. The state opposed the motion, arguing that dismissal was not appropriate because (1) the prosecutor had agreed not to call Regan as a witness, and (2) the court had insufficient information to determine whether the violations were purposeful or inadvertent.

At defendant's request, and pursuant to his limited waiver of the attorney-client privilege, the trial judge asked a different Judge to conduct an in camera inspection of the recorded phone calls, After doing so, the reviewing judge prepared two memoranda for the trial judge, one outlining the content of the calls and one outlining the trial strategy discussed during the calls, After reviewing those memoranda, the trial court concluded that the level of intrusion ₁₇₃into defendant's right to counsel, based in part on the state's concession that the "breach falls into the purposeful category," was not inadvertent. It further found that the...