State v. Savinskiy

“Article 1, Section II, can also foreclose interrogation of a defendant without his or her attorney present when the interrogation is regarding uncharged conduct and occurs after the defendant has retained counsel for a previously charged offense, if the charged and uncharged conduct is ‘sufficiently related.’” State v. Prieto-Rubio, 359 Or. 36-37 (2016).

Defendant appealed a judgment of conviction for two counts (count 1 and 2) of attempted murder (ORS 161.405(2)(a)), one count (count 5) of fleeing or attempting to elude a police office while in a motor vehicle (ORS 811.540(1)), one count of identity theft (6) (ORS 165.800), one count of attempted possession of a silencer (7)  (ORS 161.405(2)(C)), five counts of recklessly endangering another person (9 and 13)(ORS 163.195), two counts of conspiracy to commit murder (17 and 18) (ORS 161.450(2)(a)), and one count of conspiracy to commit assault in the first degree (19) (ORS 161.450(2)(a)). Defendant assigned error to the trial courts denial of defendant’s motion to suppress when the defendant’s cellmate, acting on behalf of the state, asked defendant questions about his involvement with new potential conspiracy crimes. Defendant was charged and obtained counsel at the time of questioning. “Article 1, Section II, can also foreclose interrogation of a defendant without his or her attorney present when the interrogation is regarding uncharged conduct and occurs after the defendant has retained counsel for a previously charged offense, if the charged and uncharged conduct is ‘sufficiently related.’” State v. Prieto-Rubio, 359 Or. 36-37, 376 P3d 255 (2016). The Court held that it was reasonably foreseeable that the questioning by the cellmate of the uncharged conspiracies would obtain incriminating evidence about the defendant’s current charges which defendant had already obtained counsel for. The Court held that the trial court’s error was only harmful to some of defendant’s convictions. Counts 1,2,7,17, 18, and 19 reversed and remanded; remanded for resentencing; otherwise affirmed.