State v. Allen

                                       248

     Submitted on remand from the Oregon Supreme Court December 24,
  2019; convictions for attempted aggravated murder reversed, remanded for
             resentencing, otherwise affirmed September 9, 2021


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                  MARCELLUS RAMON ALLEN,
                       Defendant-Appellant.
                  Multnomah County Circuit Court
                        121034555; A157614
                                   

     In State v. Allen, 

, 

 (2019), the Court of Appeals
concluded that the trial court erred in (1) denying defendant’s motion for judgment of acquittal on both counts of his attempted aggravated murder convictions and (2) denying defendant’s motion to suppress because the state violated
defendant’s right to be free from interrogation concerning uncharged conduct
“sufficiently related” to charged conduct, for which defendant had retained counsel in violation of Article I, section 11, of the Oregon Constitution. Subsequently,
the Supreme Court allowed the state’s petition for review, vacated that decision,
and remanded with an instruction to reconsider it in light of State v. Savinskiy,

, 

, adh’d to as modified on recons, 

, 

 (2019). On remand, the sole issue is whether the trial court erred in denying
defendant’s motion to suppress. Held: On remand, the Court of Appeals reversed
defendant’s convictions for attempted aggravated murder and concluded that
the trial court did not err in denying defendant’s motion to suppress. In light of
Savinskiy, the protections afforded to defendant by Article I, section 11, had not
attached to defendant’s new and uncharged criminal activity, and, therefore, his
rights were not violated.
    Convictions for attempted aggravated murder reversed; remanded for resentencing; otherwise affirmed.



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

, 

 (2019).
    Cheryl A. Albrecht, Judge.
    Ryan Scott filed the briefs for appellant.
   Ellen F. Rosenblum, Attorney General, Paul L. Smith,
Deputy Solicitor General, and Doug M. Petrina, Assistant
Attorney General, filed the opening brief for respondent. On
the supplemental brief were Ellen F. Rosenblum, Attorney
General, Benjamin Gutman, Solicitor General, and Doug M.
Petrina, Assistant Attorney General.
Cite as 

 (2021)                       249

  Before Tookey, Presiding Judge, and Egan, Chief Judge,
and Shorr, Judge.
  EGAN, C. J.
  Convictions for attempted aggravated murder reversed;
remanded for resentencing; otherwise affirmed.
250                                                               State v. Allen

           EGAN, C. J.
        This case is before us on remand from the Oregon
Supreme Court. We issued an opinion in this case, in which
we reversed two charges of attempted aggravated murder
and reversed and remanded one count of conspiracy to commit aggravated murder. State v. Allen, 

, 

, vac’d and rem’d, 

 (2019). The state conceded, and we agreed, that the trial court erred in denying
defendant’s motion for judgment of acquittal on both counts
of his attempted aggravated murder convictions. That
aspect of the case is not at issue on remand. Thus, the sole
issue on remand is whether the trial court erred in denying
defendant’s motion to suppress.
         In our prior opinion, we reversed and remanded on
that assignment of error, relying on State v. Prieto-Rubio,

, 

 (2016). We concluded that the state
violated defendant’s right to be free from interrogation concerning uncharged conduct “sufficiently related” to charged
conduct, for which defendant had retained counsel in violation of Article I, section 11, of the Oregon Constitution.1 The
Supreme Court allowed the state’s petition for review and
vacated our decision with an instruction to reconsider it in
light of State v. Savinskiy, 

, 

, adh’d to
as modified on recons, 

, 

 (2019), which
issued after our first decision in this case. Now, in light of
Savinskiy, we conclude that the protections afforded to defendant by Article I, section 11, had not attached to defendant’s
new and uncharged criminal activity, and, therefore, his
rights were not violated. Accordingly, we adhere to our prior
decision reversing defendant’s convictions for attempted
aggravated murder, but we now affirm on the remaining
assignment of error.
         As relevant to that assignment of error, defendant
was in custody on murder charges and he was represented
by counsel on those charges. While awaiting trial, defendant offered money to a fellow inmate to murder a witness
in his upcoming murder trial. The inmate reported defendant’s offer to the police and agreed to wear a body wire to
    1
      As relevant here, Article I, section 11, provides that “[i]n all criminal prosecutions, the accused shall have the right … to be heard by himself and counsel.”
Cite as 

 (2021)                                                 251

record a conversation with defendant. Subsequently, defendant was charged with, among other offenses, two counts of
attempted aggravated murder and one count of conspiracy
to commit aggravated murder.
         Before trial, defendant moved to suppress “any and
all statements [or] admissions allegedly made by [d]efendant,” on the ground that his right to counsel was violated
when the state used the informant to initiate an interrogation. After hearing arguments, the trial court agreed with
defendant that suppression of the evidence was required as
to his then pending murder charges. However, as to this
case, the court concluded that defendant’s rights were not
violated because the “police are not prohibited from contacting defendant in custody to talk about an unrelated matter.”
        After a jury trial, defendant was convicted of two
counts of attempted aggravated murder and one count of
conspiracy to commit aggravated murder.
        Defendant argues that his pending murder charges
were sufficiently related to the new investigation to require
suppression of the evidence in both cases. The state
responds, as relevant here, that the right to counsel had not
yet attached to the new and ongoing crimes—that is, the
charges that led to the convictions in this case.
         Article I, section 11, prohibits police interrogation
of a suspect without notice to counsel concerning uncharged
conduct that is “sufficiently related” to the charged conduct
for which the suspect has retained counsel. Prieto-Rubio,

. However, Savinskiy clarified that that protection does not extend so far as to protect “a defendant from
police inquiry into new criminal activity in progress.”2 

 (emphasis added). Here, defendant engaged in
new criminal activity when he solicited his fellow inmate
to murder a witness in his pending murder trial. “[T]he
    2
      The right to counsel in Oregon arises from two separate constitutional provisions. In addition to the Article I, section 11, guarantee of counsel to a person
charged with a crime, a person who is placed in custody or other compelling circumstances has a “right to have the advice of counsel in responding to police
questioning” that is “derivative or adjunct” to the Article I, section 12, right
against compelled self-incrimination. Savinskiy, 

 n 6. Here, as in
Savinskiy, defendant asserts a violation only of his Article I, section 11, right to
counsel.
252                                                           State v. Allen

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 … new, uncharged and ongoing” criminal conduct.

.3 Accordingly, the trial court did not err in denying
defendant’s motion to suppress in this case.
        Convictions for attempted aggravated murder
reversed; remanded for resentencing; otherwise affirmed.




    3
      Defendant also argues, relying on State v. Craigen, 

, 

 (2021), that the trial court erred because the conduct here was not “ongoing.” We are not persuaded by defendant’s attempt to differentiate this case from
Savinskiy, and, accordingly, reject that argument.