State v. Craigen

Questioning a defendant, outside of counsel, about new criminal conduct is not prohibited by Article I, section 11 when that conduct is: (1) different in nature from pending charges, (2) separated by a substantial amount of time from the pending charges, and (3) investigated by different officers than those that investigated the criminal activity responsible for the pending charges. State v. Craigen, 295 Or App 17, 432 P3d 274 (2018).

The Oregon Supreme Court remanded this case for review under State v. Savinskiy, 364 Or 802, 441 P3d 557 (2019) (Savinskiy II). Defendant assigned error to the trial court because they admitted his responses to an officer’s questions about a homicide outside the presence of counsel. The State argued that Savinskiy II should apply, and the Court should recognize the Defendant’s new criminal conduct (the homicide) as different from his previous felon in possession (FIP) charges. Defendant argued that the Prieto-Rubio standard still applied because Savinskiy II only excused officers from contacting counsel when questioning was about an ongoing crime. Questioning a defendant, outside of counsel, about new criminal conduct is not prohibited by Article I, section 11 when that conduct is: (1) different in nature from pending charges, (2) separated by a substantial amount of time from the pending charges, and (3) investigated by different officers than those that investigated the criminal activity responsible for the pending charges. State v. Craigen, 295 Or App 17, 432 P3d 274 (2018). Once Defendant stated that he committed the homicide because he believed the victim was responsible for his FIP charges, the officer violated Defendant’s Article I, section 11 rights by continuing the line of questioning without the Defendant’s attorney present. Thus, the Court determined its original holding was consistent with Savinskiy II. Convictions on Counts 1 and 5 reversed and remanded; remanded for resentencing; otherwise affirmed.