State v. Craigen

                                         478

   Submitted on remand from the Oregon Supreme Court December 9, 2019;
     convictions on Counts 1 and 5 reversed and remanded, remanded for
     resentencing, otherwise affirmed May 19; petition for review allowed
                        October 14, 2021 (

)
                        See later issue Oregon Reports


                        STATE OF OREGON,
                         Plaintiff-Respondent,
                                   v.
                      GEORGE WEST CRAIGEN,
                        Defendant-Appellant.
                     Umatilla County Circuit Court
                         CF140169; A158112
                                    

     In State v. Craigen, 

, 

 (2018), the Court of Appeals
reversed defendant’s conviction for murder, Count 1, and remanded for a new
trial on the ground that certain out-of-court statements by defendant had been
obtained in violation of his Article I, section 11, of the Oregon Constitution right
to counsel. In doing so, the court relied in part on its decision in State v. Savinskiy,

, 

 (2017). Then, the Oregon Supreme Court reversed
Savinskiy and remanded this case for reconsideration in light of that reversal.
State v. Craigen, 

, 

 (2019). On remand, primarily at issue
is whether officer questioning of defendant about the shooting of his neighbor
violated his right to counsel under Article I, section 11, such that his statements
should have been suppressed; defendant argues that the statements should be
suppressed because, at the time of the questioning, defendant was represented by
counsel on related, pending charges of felon in possession of a firearm. Defendant
additionally assigns as plain error the trial court’s acceptance of a nonunanimous jury verdict on Count 5, obliteration of identification number on a firearm.
Held: The trial court erred in declining to suppress defendant’s statements and
plainly erred in accepting a nonunanimous verdict on Count 5. The Supreme
Court’s reversal of Savinskiy did not alter case law holding that a violation of the
Article I, section 11, right to counsel requires the suppression of any evidence
obtained as a result of the violation, including evidence of other crimes, unless
the state shows that the evidence was obtained by means independent of the
interrogation.
    Convictions on Counts 1 and 5 reversed and remanded; remanded for resentencing; otherwise affirmed.


   On remand from the Oregon Supreme Court, State v.
Craigen, 

, 

 (2019).
   Russell B. West, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and David O. Ferry, Deputy Public Defender, Office
of Public Defense Services, filed the briefs for appellant.
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 (2021)                           479

   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Michael A. Casper, Assistant Attorney
General, filed the briefs for respondent.
  Before Lagesen, Presiding Judge, and Egan, Chief Judge,
and Powers, Judge.
  LAGESEN, P. J.
  Convictions on Counts 1 and 5 reversed and remanded;
remanded for resentencing; otherwise affirmed.
480                                           State v. Craigen

        LAGESEN, P. J.
         This case is before us on remand from the Supreme
Court, which vacated and remanded our previous decision
for reconsideration in light of State v. Savinskiy, 

,

 (2019) (Savinskiy II). State v. Craigen, 

, 

 (2019) (Craigen III). For the following reasons, we adhere to our previous decision and reverse and
remand for a new trial.
         The relevant facts are set forth in our two previous
decisions in this matter: State v. Craigen, 

,

 (2018) (Craigen I), and State v. Craigen, 

, 

 (2019) (Craigen II). We set them forth
here only as needed for context. In Craigen I, we reversed
defendant’s conviction for murder, Count 1, and remanded
for a new trial on the ground that certain out-of-court statements by defendant had been obtained in violation of his
Article I, section 11, of the Oregon Constitution right to counsel. Craigen I, 

. In reaching that conclusion,
we relied in part on our decision in State v. Savinskiy, 

, 

 (2017) (Savinskiy I), rev’d, 

,

 (2019), in determining the scope of suppression
warranted to remedy the Article I, section 11, violation. 

In Craigen II, on the state’s petition for reconsideration asking us to reach an issue we had not addressed initially, we
concluded that the trial court erred by ruling that evidence
of defendant’s depression and brain injury could not be considered in connection with defendant’s extreme emotional
disturbance (EED) defense, but had not erred in excluding
other evidence that defendant sought to introduce regarding
that defense. Craigen II, 

. Because we had
previously determined that the Article I, section 11, error
required reversal, we did not address whether that evidentiary error, in and of itself, was one that required reversal.

.
         The state then petitioned for Supreme Court review.
As noted, after deciding Savinskiy II, the Supreme Court
vacated our prior decisions and remanded for reconsideration in light of Savinskiy II. On remand, the parties have
submitted supplemental briefs addressing two issues: (1) how
the Supreme Court’s decision in Savinskiy II affects the
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Article I, section 11, analysis in this case; and (2) whether
the evidentiary error related to the EED defense, in and of
itself, presents grounds for reversal. In addition, following
the decisions in Ramos v. Louisiana, 

, 

, 

 (2020), and State v. Ulery, 

,

 (2020), defendant filed a supplemental brief
requesting that we reverse his conviction on Count 5, obliteration or change of identification number on firearm, ORS
166.450, because that conviction was based on a nonunanimous verdict. We address those issues in turn.
         Article I, section 11. At issue in this case is whether
the officers’ questioning of defendant about the shooting of
his neighbor violated his right to counsel under Article I,
section 11, when, at the time of the questioning, defendant
was represented by counsel on pending charges of felon in
possession of a firearm (FIP). Craigen I, 

.
Applying the standard set forth in State v. Prieto-Rubio, 

, 

 (2016), we concluded that
   “the officers violated defendant’s rights under Article I, section 11, when they continued to question defendant without
   notifying his lawyer once it became apparent that there
   was a connection between the FIP charges and the homicide, when defendant disclosed that his motive for shooting
   the victim was his belief that the victim had set him up on
   the FIP charges.”
Craigen I, 

. That is because, at that point,
it was “objectively reasonably foreseeable that the questioning [would] lead to incriminating evidence concerning the
offense for which the defendant [had] obtained counsel,”
making the continued questioning violative of Article I, section 11, under the Prieto-Rubio standard. Prieto-Rubio, 

; see also Craigen I, 

 (applying
standard). In fact, as we explained, “not only was it foreseeable at that point that further questioning might elicit
incriminating information about the firearm charges, [the
officer] explicitly questioned defendant about the firearms
underlying those charges, eliciting incriminating information from defendant about how he came to possess those firearms,” in direct violation of defendant’s Article I, section 11,
right to counsel on the firearm charges. Craigen I, 

.
482                                         State v. Craigen

         We concluded further that the Article I, section 11,
violation requires suppression of all of defendant’s statements after the violation, including statements about the
yet-uncharged homicide, because the state had not demonstrated that it obtained those statements in a manner independent from the unlawful portion of the interrogation. 

. In determining the scope of suppression, we relied on
our decision in Savinskiy I, noting that that particular issue
was currently pending on review in the Supreme Court, and
that, in its order allowing review, the court identified the
question as, “[I]f the evidence is not admissible to prove the
original crimes, is the evidence nonetheless admissible to
prove the new crimes?” 

 at 30 & n 6.
         Although the Supreme Court allowed review on the
scope-of-suppression issue in Savinskiy I, it ultimately did
not decide it. Instead, the court concluded that, under the
circumstances of that case, the questioning in connection
with the uncharged offenses did not violate Article I, section 11, at all, notwithstanding the fact that it otherwise
violated the Prieto-Rubio standard. Savinskiy II, 

. As we understand the court’s ruling, that was because
of the ongoing nature of defendant’s new criminal activity.
The court explained that Prieto-Rubio was not dispositive
because, “[i]n Prieto-Rubio, we were not called upon to consider whether Article I, section 11, protects a defendant
from police inquiry into new criminal activity in progress,
and we now conclude that the right does not extend that
far.” 

. Addressing that question, the court ultimately held that the “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 the defendant about a new, uncharged and ongoing
conspiracy to harm witnesses to a pending prosecution.”

. Having concluded that there was no violation of
the Article I, section 11, right, the court did not answer the
scope-of-suppression question identified in its order allowing review, although the court held that, notwithstanding
the absence of an Article I, section 11, violation, “the state
may not use in the prosecution of [the charges on which the
defendant had counsel] incriminating statements that the
police obtained through questioning without notice to the
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counsel who was already defending against those charges.”
Id. at 820.
         In their supplemental briefs on remand, the parties dispute whether Savinskiy II alters our previous
analysis in this case. The state reads Savinskiy II broadly.
It emphasizes that two factors that informed the analysis
in Savinskiy II are present here: that defendant’s new criminal conduct—homicide—was very different from the pending charges of felon in possession, and that defendant committed the new criminal conduct after the charges were
pending. See Savinskiy II, 

 (discussing those
factors). Further, the state notes, similar to the case in
Savinskiy II, defendant’s new criminal conduct related to
the pending charges, at least in defendant’s mind, because
defendant’s motive for shooting the victim was his belief
that the victim had set the defendant up for the felon-inpossession charges. The state urges us to conclude that those
similarities mean that, under Savinskiy II, the questioning
at issue here did not violate Article I, section 11.
         Defendant, in response, reads Savinskiy II narrowly. He notes that the court did not displace the Prieto-Rubio standard. Rather, pointing to the court’s framing
of the issue before it and its articulation of its holding,
he contends that Savinskiy II stands only for the proposition that the Article I, section 11, right to counsel does not
require officers to notify the attorney representing a person
on pending criminal charges before questioning a person
about an in-progress criminal scheme to disrupt the prosecution of the pending charges. He reasons that, because his
own new, uncharged criminal activity was not ongoing at
the time, this case remains controlled by Prieto-Rubio, not
Savinskiy II.
         Although the state’s arguments for extending the
rule of law announced in Savinskiy II are not without some
force, we conclude, for two reasons, that Savinskiy II has not
changed the law in a way that alters our previous conclusion.
         First, in reaching its conclusion in Savinskiy II, the
court placed a great deal of emphasis on the fact that the
rule it was announcing applied to questioning about a crime
484                                         State v. Craigen

believed to be ongoing. That emphasis suggests to us that
the court intended the rule it announced to apply in those
limited circumstances.
         Second, our holding in Craigen I is largely consistent with the rule announced in Savinskiy II. We held that
the initial questioning of defendant about his new criminal
conduct was not prohibited by Article I, section 11, “given
many of the considerations identified by the trial court: the
FIP charges were different in nature from the homicide,
were separated from the homicide by a substantial amount of
time, and were investigated by different officers.” Craigen I,

. Rather, the questioning came into conflict
with defendant’s Article I, section 11, rights only after he
first disclosed that he shot the victim because of his belief
that the victim set him up on the FIP charges, at which point
the officer questioned defendant directly about the charges
on which he had counsel. 

. At least where, as here,
a person’s new criminal conduct is not ongoing, we do not
understand Savinskiy to stand for the proposition that, in
the context of an investigation of new criminal conduct,
officers may, consistent with Article I, section 11, directly
question a person about pending charges on which they are
represented without notifying counsel. To hold that such
direct questioning about pending charges is permissible in
any investigation of new, unrelated criminal conduct would
largely nullify the clear rule of law announced in State v.
Sparklin, 

, 

 (1983): “Once an
attorney is appointed or retained, there can be no interrogation of a defendant concerning the events surrounding the
crime charged unless the attorney representing the defendant on that charge is notified and afforded a reasonable
opportunity to attend.” We do not understand Savinskiy II
to operate in that way.
         As noted, in Craigen I, we relied on Savinskiy I
to conclude that the violation of defendant’s Article I, section 11, rights with respect to the FIP charges required suppression of defendant’s statements obtained after the violation in both the FIP case and this case, rejecting the state’s
arguments that suppression was required in the FIP case
alone. Our holding in Savinskiy I about the scope of suppression was based on our case law holding that a violation of
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the Article I, section 11, right to counsel requires the suppression of any evidence obtained as a result of the violation,
including evidence of other crimes, unless the state shows
that the evidence was obtained by means independent of the
interrogation. Savinskiy I, 

 (citing State v.
Beltran-Solas, 

, 

 (2016), and
State v. Hensley, 

, 

 (2016)).
Given its conclusion that no Article I, section 11, violation
occurred at all in that case, Savinskiy II did not address the
scope-of-suppression issue and, for that reason, provides no
grounds for departing from our prior case law on that issue,
notwithstanding the reversal of our decision in Savinskiy I.
Accordingly, we adhere to our reasoning in Craigen I and, for
the reasons stated in our prior opinion and this one, reverse
and remand defendant’s conviction on Count 1.
          Evidentiary error. Although our adherence to our
prior disposition could obviate the need to address whether
the evidentiary error identified in Craigen II is harmless,
we address it to eliminate the need for a future remand in
the event that the Supreme Court were to reach a different
conclusion on the Article I, section 11, issue. In Craigen II,
we held that the trial court erred in excluding some, but not
all, of the expert evidence that defendant sought to introduce in support of his EED defense to the murder charge.
Craigen II, 

. Evidentiary error is harmless
if there is “little likelihood” that the error affected the jury’s
verdict. State v. Davis, 

, 

 (2003).
Defendant’s offer of proof regarding the excluded expert
evidence focused mostly on the evidence that we concluded
was properly excluded rather than on the evidence that we
concluded was excluded in error, and did not address in any
clear way what testimony defendant would present on the
permissible topics. As a result, the record is inadequate to
permit us to assess harm, which means that defendant has
not demonstrated that the trial court’s error in excluding the
evidence is, in and of itself, grounds for reversal. See State
v. Krieger, 

, 

, rev den,

 (2018) (party claiming evidentiary error must
develop record sufficient to evaluate whether any error is
harmless). Although we have concluded that the error would
not be grounds for reversal in and of itself, as we stated in
486                                         State v. Craigen

Craigen II, “our holdings are without prejudice to defendant’s ability to develop additional evidence” on remand in
a manner that comports with State v. Zielinski, 

, 

 (2017). Craigen II, 

.
         Nonunanimous verdict. As noted, the verdict on
Count 5 was not unanimous. For the reasons explained in
Ulery, it was plain error to accept the verdict, and, for the
reasons also stated in Ulery, we exercise our discretion to
correct that error by reversing the conviction on Count 5.
Ulery, 

.
       Convictions on Counts 1 and 5 reversed and
remanded; remanded for resentencing; otherwise affirmed.