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Oregon Supreme Court, May 23, 2019

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by: Rankin Johnson IV • May 24, 2019 • no comments

Summarized by Rankin Johnson, OCDLA

FEDERAL SENTENCING— Oregon robbery as federal predicate

On reconsideration, Supreme Court declined to answer certified question from Ninth Circuit.

The Ninth Circuit asked the Supreme Court to state whether there were multiple theories of Oregon first- or second-degree robbery requiring unanimity instructions. Initially, the court agreed to answer the questions, but thereafter federal law on the topic, and as a result the parties' interests, changed.

United States v. Lawrence/Ankeny 364 Or 796 (May 23, 2019) (Walters)

RIGHT TO COUNSEL— Effect of pending charges on investigation of ongoing criminal activity

Police could properly encourage an informant to talk to represented defendant and record defendant's solicitation of crimes against witnesses and prosecutor in pending case. Trial court affirmed, Court of Appeals reversed, remanded.

While in custody on pending charges and represented by counsel, defendant asked his cellmate to murder and assault witnesses and the prosecutor. The cellmate reported to the authorities, and law enforcement arranged to record conversations between the cellmate and the defendant. During recorded conversations, defendant discussed his pending charges and new criminal conduct.

The Court of Appeals held that questioning about the new offenses was sufficiently related to the prior offenses to be prevented by defendant's Article I, sec 11 right to counsel. The Supreme Court disagreed, explaining that the new offenses were factually distinct and committed after the old offenses had been charged, and therefore the right to counsel on the old offenses did not extend to questioning on the new offenses.

The Supreme Court further held that statements obtained in response to questioning about new offenses are not admissible as to old offenses.

Duncan, dissenting and joined by Walters and Nelson, argued that Article I, sec 11 forbids questioning a defendant in a manner that could implicate the defendant in crimes as to which the defendant is represented, and that the results of such interrogation are inadmissible. Duncan argued that the majority opinion appeared to make such questioning permissible, or not, based on the intent of the questioning officer.

State v. Savinsky 364 Or 802 (May 23, 2019) (Flynn, Duncan dissenting) (Clatsop, Nelson)