State v. Savinskiy

"[T]he purpose of the Article I, section 11, right is to ensure that a defendant charged with a crime has the benefit of an attorney's presence, advice, and expertise 'in any situation where the state may glean involuntary and incriminating evidence or statements for use in the prosecution of its case against defendant.'" State v. Prieto-Rubio, 359 Or 16, 36, 376 P3d 255 (2016) (quoting State v. Sparklin, 296 Or 85, 93, 672 P2d 1182 (1983)).

The state petitioned for review of the Court of Appeals decision to reverse defendant's convictions through a violation of Article I, section 11, right to counsel.  The state assigned error to the Court of Appeals conclusion that "Article I, section 11 guarantee[d] a right to counsel during police questioning about the kind of new, uncharged criminal activity in which defendant was engaged."  The state argued that the test outlined in Prieto-Rubio was not intended to protect police inquiry into a new criminal activity in progress.  Defendant argued that Prieto-Rubio supported the "Court of Appeals holding that the state violated defendant's right to counsel."  "[T]he purpose of the Article I, section 11, right is to ensure that a defendant charged with a crime has the benefit of an attorney's presence, advice, and expertise 'in any situation where the state may glean involuntary and incriminating evidence or statements for use in the prosecution of its case against defendant.'" State v. Prieto-Rubio, 359 Or 16, 36, 376 P3d 255 (2016) (quoting State v. Sparklin, 296 Or 85, 93, 672 P2d 1182 (1983)).  The Court held that "Article I, section 11, right to counsel on pending charges does not guarantee that the state will provide notice to a defendant's attorney before questioning about a new, uncharged and ongoing conspiracy to harm witnesses to a pending prosecution," however to avoid undermining "the fairness of trail and counsel’s effectiveness in defending" against pending charges, the state may not use the incriminating statements obtained without notice to counsel in the prosecution of those charges.  Decision of the Court of Appeals is reversed as to defendant's convictions for conspiracy to commit murder and otherwise affirmed.  The judgment of the trial court is reversed and remanded as to the defendant's convictions for crimes charged in the original indictment but is otherwise affirmed.