State v. Greenwood

When the State violates a defendant’s right to counsel by intruding on a defendant’s attorney-client privilege, the State bears the burden of proving there is an absence of prejudice to the defendant.

Defendant entered a no-contest plea and was convicted of criminally negligent homicide (Count 3), fleeing or attempting to elude a police officer (Count 4), and first-degree burglary (Count 8). Defendant argued that the trial court erred in denying his pretrial motion to dismiss. He asserted that the State violated his constitutional right to counsel when the lead detective listened to phone recordings between him and his attorney which “intrude[ed] upon [his] attorney-client privilege,” and created an “irrebuttable and conclusive presumption of prejudice.” Article I, section 11 of the Oregon Constitution states that, “In all criminal prosecutions, the accused shall have the right *** to be heard by himself and counsel [.]” This constitutional right further extends to a defendant’s “right to confer privately with counsel.” State v. Durbin, 335 OR 183, 190, 63 P3d 576 (2003). The Court stated that the State had the burden to prove that despite obtaining privileged trial strategy information and leading the investigation, the Defendant had not been prejudiced by the detective hearing those private conversations.  The Court held that the State violated Defendant’s right to counsel, and did not meet its burden of clear and convincing evidence to show that the Defendant had not been prejudiced by the intrusion. REVERSED AND REMANDED.