State v. Prieto-Rubio , 359 Or. 16 ( 2016 )

16 April 7, 2016 No. 20
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Petitioner on Review,
v.
JESUS R. PRIETO-RUBIO,
Respondent on Review.
(CC 11693CR, 112523CR;
CA A152030 (Control), A152033;
SC S062344)
On review from the Court of Appeals.*
Argued and submitted February 4, 2015.
Rebecca M. Auten, Assistant Attorney General, Salem,
argued the cause and filed the brief for petitioner on review.
With her on the briefs were Ellen F. Rosenblum, Attorney
General, Anna Joyce, Solicitor General.
John J. Tyner, III, Hillsboro, argued the cause and filed
the brief for respondent on review.
Alexander A. Wheatley, Portland, filed the brief for
amicus curiae Oregon Justice Resource Center and on behalf
of amici curiae American Civil Liberties Union of Oregon,
Inc. and the Oregon Criminal Defense Lawyers Association.
With him on the brief was Emily E. Elison, Portland.
Before Balmer, C.J., Kistler, Walters, Landau, Baldwin,
Brewer, and Nakamoto, Justices.**
LANDAU, J.
The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
______________
**  Appeal from Washington County Circuit Court, Thomas Kohl, Judge. 262
Or App 149, 324 P3d 543 (2014)
**  Linder, J., retired on December 31, 2015, and did not participate in the
decision of this case.
Cite as 359 Or 16 (2016) 17
Case Summary: Defendant was charged with two counts of first-degree sex-
ual abuse of A, a young girl in his extended family, and he retained counsel on
those charges. Police later interviewed defendant without counsel about the pos-
sible sexual abuse of two of defendant’s nieces, K and L. In the criminal case
involving K and L, defendant moved to suppress certain incriminating state-
ments he had made in the uncounseled interview. He argued that because he
was represented on the charges involving A and those charges were factually
related to the abuse of K and L, his right to counsel under Article I, section 11,
of the Oregon Constitution, in the case involving A foreclosed uncounseled ques-
tioning about the abuse of K and L. The trial court denied that motion, but the
Court of Appeals reversed. Held: (1) The Article I, section 11, right to counsel
forecloses questioning of a defendant when it is reasonably foreseeable to a person
in the questioner’s position that questioning will elicit information involving the
charged offense, for which the defendant has obtained counsel; (2) in this case,
it was reasonably foreseeable that questioning about the abuse of K and L would
elicit information about the abuse of A.
The decision of the Court of Appeals is affirmed. The judgment of the cir-
cuit court is reversed, and the case is remanded to the circuit court for further
proceedings.
18 State v. Prieto-Rubio
LANDAU, J.
After a defendant has been charged with a crime
and the right to counsel has attached, Article I, section 11,
of the Oregon Constitution prohibits the police from asking
the defendant about that crime without first notifying his
or her lawyer. State v. Randant, 341 Or 64, 71-73, 136 P3d
1113 (2006). The issue in this case is the extent to which
that same constitutional provision prohibits the police
from questioning a represented defendant charged with a
crime about other, uncharged offenses. Defendant argues
that police violate the right to counsel by questioning about
other, uncharged offenses if those matters were in any way
“factually related” to the crime for which he had obtained
counsel. According to defendant, that is what happened in
this case, and so the trial court should have suppressed cer-
tain statements that he made to police without the assis-
tance of counsel. The state argues that defendant relies on
the wrong test. In the state’s view, police who question a
defendant about other matters violate that defendant’s right
to counsel only if those other matters are part of the same
“criminal episode” for which the defendant obtained counsel.
According to the state, police are free to question a defen-
dant about matters not concerning the charged crime or the
events surrounding that crime, and, because that is what
happened in this case, the trial court correctly denied defen-
dant’s motion to suppress. The Court of Appeals agreed with
defendant. State v. Prieto-Rubio, 262 Or App 149, 324 P3d
543 (2014).
We conclude that the appropriate test for deter-
mining the permissible scope of questioning of a criminal
defendant who is represented by counsel is whether it is
objectively reasonably foreseeable that the questioning will
lead to incriminating evidence concerning the offense for
which the defendant has obtained counsel. In this case,
the charged and uncharged offenses were so closely related
that it was reasonably foreseeable that questioning defen-
dant about the uncharged offenses would elicit incriminat-
ing evidence about the charged offense. As a result, that
questioning violated defendant’s state constitutional right
to counsel. Accordingly, we affirm the decision of the Court
of Appeals.
Cite as 359 Or 16 (2016) 19
I. FACTS
The relevant facts are not in dispute. On August 8,
2011, a 12-year-old girl, A, reported that defendant, a mem-
ber of her extended family, had sexually abused her the pre-
vious day. She said that defendant had touched her breasts
and vaginal area while she was at his home. The following
day, Detective Rookhuyzen went to defendant’s home and
interviewed him. Defendant admitted that he had been in
the same room with A, but he said that he did not remember
what had happened there. Rookhuyzen arrested defendant
for his abuse of A.
At the station, Rookhuyzen interviewed defendant
again. He asked defendant primarily about A. But he also
asked whether any other children had come to defendant’s
home. Defendant mentioned another child, K, but only by
first name. The state ultimately charged defendant with
first-degree sexual abuse of A, alleging that the abuse
occurred “on or between August 7, 2011 [and] August 8,
2011.” Defendant retained counsel to defend him on that
charge.
Over the next several weeks, Rookhuyzen contin-
ued to investigate. He located K, who turned out to be a
niece of defendant. K reported that defendant had repeat-
edly touched her vaginal area. Rookhuyzen located another
minor victim, L, who was another niece of defendant and
who also reported that defendant once had put his hands in
her pants and touched her vaginal area. Both K and L said
that the incidents of abuse had occurred while they were
alone with defendant at his home. They reported that the
separate incidents occurred at least eight months before
defendant allegedly abused A.
Rookhuyzen went to the Washington County Jail,
where defendant was being held on the charges relating
to A. Rookhuyzen read defendant his Miranda rights, and
defendant waived those rights. The detective knew that
defendant had retained counsel on the charges relating to
A. But he did not notify defendant’s lawyer about the inter-
view, because he intended to ask defendant only about K
and L. During the interview, Rookhuyzen questioned defen-
dant about K and L, and defendant made incriminating
20 State v. Prieto-Rubio
statements about the incidents involving those two victims.
The state then charged defendant with three counts of first-
degree sexual abuse, two counts involving K and one involv-
ing L. The indictment alleged that defendant had abused
K “on or between August 31, 2009 and January 1, 2011.” It
further alleged that defendant had abused L “on or between
January 1, 2010 and January 1, 2011.”
The state then moved to consolidate the case involv-
ing A with the case involving K and L. The state informed
the court that it was proper to consolidate the cases because
the crimes alleged against defendant “involve many of the
same witnesses and arise from the same investigation”
and that those crimes “are of the same or similar charac-
ter and show a common scheme or plan.” See generally ORS
132.560(1)(b)(A) and (C) (grounds for consolidation). The
trial court granted the state’s motion.
Before trial, defendant moved to suppress the state-
ments that he had made to Rookhuyzen regarding K and L
because they had been obtained in violation of his right to
counsel, guaranteed by Article I, section 11, of the Oregon
Constitution. Defendant argued that Rookhuyzen knew
that he already had retained counsel and yet failed to notify
counsel before conducting the interview. In defendant’s view,
even though he had obtained counsel to defend him only on
the charge related to A, under State v. Sparklin, 296 Or 85,
672 P2d 1182 (1983), the detective was not permitted to
question him about K and L because the incidents involving
those victims was factually related to the incident involving
A.
At the hearing on defendant’s motion, Rookhuyzen
testified about his interview of defendant regarding K and
L.
“The Court: How would I ultimately be able to say, Officer,
that you weren’t ending up talking to the defendant about
things that fell with—under the case that he was already
represented? How do you know you weren’t doing that?
“The Witness: Well, I think it’s impossible to have a con-
versation with him and not have some overlap. These are
family members. So I mean, I think that it’s fair to say,
you, know, a name might have come up. But at this point,
Cite as 359 Or 16 (2016) 21
he’d been charged on the first victim, and I was completely
focused on victims two and three.”
Rookhuyzen acknowledged on cross-examination that it was
“fair to say” that during all of his interviews he had asked
defendant about “the universe of kids who [had come] to his
house” over the course of the preceding two years. But when
asked about who actually was mentioned in the last inter-
view, the detective replied that only K and L were named.
The trial court denied defendant’s motion to sup-
press. It explained that defendant’s constitutional right to
counsel had attached only as to the charges involving A, and
Rookhuyzen’s questioning did not violate that right because
the interview focused on the charges involving K and L,
which involved different times and different victims:
“And the fact that the cases appear to be related,
because, of course, first of all, they’re—the allegations are
against [defendant]; that they’re from minors; and that
they involve his house is sufficiently similar to say that
they are the same. And the representations of counsel is
to the offense charged, which would have been the offenses
charged initially [involving A], not the ones related to
by the officer that were charged after that, because they
involved a different time frame and different victims and
result in the allegations of different crimes.”
Defendant waived his right to a jury trial, and the court
found him guilty of one count of sexual abuse against K and
L and two counts of attempted sexual abuse of A. In render-
ing the verdict on the case involving K and L, the trial court
referred to the incriminating statements that defendant had
made to Rookhuyzen during the final interview.
On appeal, defendant argued that the trial court
erred in denying his motion to suppress the statements that
he had made to Rookhuyzen about K and L. He argued to
the Court of Appeals as he had to the trial court, namely,
that Rookhuyzen had violated his state constitutional right
to counsel by interviewing him without notifying his lawyer
when the detective knew that he had retained counsel.
The Court of Appeals agreed with defendant and
reversed. The court began with the general proposition that,
once a defendant has retained counsel to provide a defense
22 State v. Prieto-Rubio
on a criminal charge, there can be no interrogation concern-
ing the events related to that charge unless the defendant’s
lawyer is notified and afforded a reasonable opportunity
to attend. 262 Or App at 155. Citing this court’s decision
in Sparklin, the court noted that the right to insist on the
presence of counsel, however, is limited to the “criminal epi-
sode” that gave rise to the charge for which he obtained the
assistance of an attorney. Id. at 156. Even so, the court com-
mented, “ ‘we cannot simply take at face value the Supreme
Court’s statement that the Article I, section 11, right is
specific to the criminal episode in which the accused is
charged.’ ” Id. at 159 (quoting State v. Potter, 245 Or App 1,
7, 260 P3d 815 (2011)). In the view of the Court of Appeals,
Sparklin must be understood to apply more broadly. Id. The
court observed that interpreting Sparklin to apply solely to
the criminal episode for which the defendant was charged
could permit the state to game the rule to enable it to inter-
rogate defendants without informing their attorneys, for
example, by strategically delaying filing certain charges.
Id. To avoid such possibilities, the controlling inquiry must
focus on whether the charged offense and the subject of the
additional investigation are “factually related,” taking into
account the extent to which there is overlapping evidence
and close temporal proximity, as well as whether there is
close collaboration among those investigating the different
incidents. Id. at 156-57.
Applying those principles to the case, the court con-
cluded that the criminal episodes involving A, K, and L were
factually related for the purposes of defendant’s Article I,
section 11, right to counsel. Id. at 157-59. The court said
that, although the crimes involving A, on the one hand, and
K and L, on the other, occurred at different times and did not
involve overlapping evidence, still, the victims were all fam-
ily members. Id. at 157-58. Moreover, the crimes occurred at
the same location, were investigated by the same detective,
and involved similar types of physical conduct toward the
victims. Id. at 158-59. Even if Rookhuyzen’s final interview
did not actually produce additional incriminating informa-
tion concerning the charges involving A, the court contin-
ued, “it is plain that that was a distinct possibility,” given
that the detective himself had said that it was “impossible”
Cite as 359 Or 16 (2016) 23
for his questioning about K and L not to have some overlap
with the charges involving A. Id. at 159.
On review, the state now argues that the Court of
Appeals erroneously departed from this court’s decision in
Sparklin. In the state’s view, Sparklin prohibits investiga-
tors from questioning a represented defendant only about
the “events surrounding the charged crime,” that is, the
events occurring immediately before or after the charged
conduct. In this case, the state argues, the crimes involving
K and L did not involve facts that occurred immediately
before or after the abuse of A; rather the offenses involv-
ing K and L occurred between eight months and two years
earlier.
Defendant argues that the Court of Appeals cor-
rectly interpreted Sparklin to hold that the right to coun-
sel under Article I, section 11, extends to questioning about
events that are factually related to the charged offense. In
defendant’s view, an event is “factually related” to a charged
offense for right-to-counsel purposes if questioning about
the event could foreseeably produce information relevant to
the charged offense. In this case, he argues, it was reason-
ably foreseeable that questioning about the abuse of K and L
could produce incriminating information about the abuse of
A because the abuse of all three victims involved members
of defendant’s extended family and occurred at the same
place, that is, defendant’s house.
II. ANALYSIS
Both parties claim support for their positions in
Sparklin. The state quotes a reference to “criminal episodes”
in the decision, while defendant quotes a different reference
in the decision to whether charges are “factually related.”
Our task then is to clarify what is the appropriate test under
Sparklin for determining the scope of the right to counsel
under Article I, section 11. We address that task by first not-
ing the doctrinal context for that decision, then addressing
what the court did and did not say in that opinion, following
with a summary of subsequent doctrinal developments, and
finally turning our attention to its appropriate application
in cases such as this one.
24 State v. Prieto-Rubio
A.  Doctrinal Context
Article I, section 11, of the Oregon Constitution pro-
vides that, “[i]n all criminal prosecutions, the accused shall
have the right * * * to be heard by himself and counsel.” As
this court explained in State v. Davis, 350 Or 440, 464-70,
256 P3d 1075 (2011), the state constitutional guarantee—
like its federal counterpart, the Sixth Amendment to the fed-
eral Constitution—was originally understood to apply only
to the conduct of criminal trials. But, as the nature of law
enforcement and criminal prosecution changed, both state
and federal courts expanded their views of the “criminal
prosecution” that triggered the right to counsel, so that the
constitutional guarantee applied as early as the commence-
ment of criminal proceedings by indictment or other formal
charge. Id. at 470-76. The rationale for that doctrinal shift
was the recognition that a defendant’s “assistance” of coun-
sel would be less than meaningful if it were limited to the
trial itself. As the United States Supreme Court explained
in United States v. Ash, 413 US 300, 310, 93 S Ct 2568, 37
L Ed 2d 619 (1973), “[t]his extension of the right to counsel
to events before trial has resulted from changing patterns
of criminal procedure and investigation that have tended to
generate pretrial events that might appropriately be consid-
ered to be parts of the trial itself.”
Although state and federal courts held that the
constitutional right to counsel “attached” as of the time of
charging, they also held that the scope of that pre-trial right
was limited to certain “critical stages” of the criminal pros-
ecution. In Ash, for example, the Supreme Court held that
the Sixth Amendment entitles a defendant the assistance of
counsel in pretrial confrontations “presenting the same dan-
gers that gave birth to the right itself.” Id. at 311. A pretrial
event is considered a “critical stage” for Sixth Amendment
purposes if counsel’s absence from that event “could dero-
gate from the defendant’s right to a fair trial.” United States
v. Wade, 388 US 218, 226, 87 S Ct 1926, 18 L Ed 2d 11 (1967).
More specifically, the right applies if “potential substantial
prejudice to defendant’s rights inheres in the particular
confrontation” and counsel’s presence would help avoid that
prejudice. Id. at 227.
Cite as 359 Or 16 (2016) 25
This court similarly held that, under Article I, sec-
tion 11, the scope of the right to counsel encompasses stages
in criminal proceedings in which counsel’s presence could
prevent prejudice to a defendant. In State v. Miller, 254 Or
244, 249, 458 P2d 1017 (1969), for example, the court con-
cluded that the right applied to those stages of a criminal
proceeding “when [a defendant] must take steps or make
a choice which is likely to have a substantial effect on the
prosecution against him.” Thus, in State ex rel. Russell v.
Jones, 293 Or 312, 317, 647 P2d 904 (1982), the court con-
cluded that the defendant’s right to counsel under Article I,
section 11, was violated by an order barring his counsel from
a presentence interview. The court focused on the potential
prejudice arising from that interview:
“At the hearing, the report of information given by the
defendant is subject to disclosure and defense counsel can
make objections and present evidence and additional state-
ments by defendant. Given these procedural opportunities,
rarely would there be a risk of irremediable harm from the
absence of counsel at the presentence interview. Yet, cir-
cumstances are conceivable where the presence of counsel
would be helpful.”
Id. at 318.
An additional aspect of the scope of the state and
federal right to counsel concerned whether the right applied
only to interrogation about a charged offense, as opposed
to interrogation about other matters as yet not the subject
of a formal criminal charge. In Brewer v. Williams, 430 US
387, 97 S Ct 1232, 51 L Ed 424 (1977), the United States
Supreme Court appeared to suggest that the right was not
limited to the charged offense, but extended to other mat-
ters that were, in some sense, closely related to the charged
offense. In that case, the defendant was charged with the
abduction of a young girl, and he retained counsel on that
charge. Police later transported him to another city. On the
drive, police—believing that defendant had murdered the
young girl during the abduction—asked defendant whether
he knew where the girl’s body was located and suggested
that her parents deserved to give their daughter a proper
Christian burial. The defendant then agreed to show the
police where he had buried the body. The defendant was
26 State v. Prieto-Rubio
later convicted of the murder, based in part on his state-
ments to the police. On appeal, he argued that the trial
court should have suppressed the statements, because
they violated his Sixth Amendment right to counsel. The
Supreme Court agreed. In the process, it did not differenti-
ate between the interrogation related to the charged crime
(kidnapping) and the questioning related to the uncharged
conduct (murder). Id. at 398-99. Although the Court did not
address the issue head-on, the fact that it concluded that
the defendant’s right to counsel had been violated by the
questioning related to the murder appeared to suggest that
the right extended to questioning about matters other than
the charged offense.
That, at least, is the way that most state and fed-
eral courts interpreted Brewer, concluding that the right to
counsel extended not just to the charged offense, but also
to other uncharged conduct that was “closely related” to
the charged offense. See, e.g., People v. Boyd, 86 Cal App
3d 54, 62 (1978), abrogated by Texas v. Cobb, 532 US 168,
168, 121 S Ct 1335, 149 L Ed 2d 321 (2001); State v. Derrico,
181 Conn 151, 168, 434 A2d 356 (1980). At least one state
court, the New York Court of Appeals, went further, adopt-
ing a “bright-line rule” that prohibited police interrogation
about any matter—whether or not related to the charged
offense—once the defendant retained counsel on a criminal
charge. People v. Rogers, 48 NY2d 167, 169, 397 NE 2d 709(1979).
B.  State v. Sparklin
It was in that context that this court decided
Sparklin. In that case, the defendant was charged with forg-
ery after using a credit card at a Eugene shopping center
stolen from one Mansell. The defendant retained counsel
on that charge. Meanwhile, police obtained information
linking the defendant to an incident in Portland in which
Mansell had been beaten and his credit cards stolen. They
also learned that the defendant might have been involved
in an unrelated murder of another man, Davidson. The
police, without notifying the defendant’s lawyer, gave defen-
dant Miranda warnings and then questioned him about the
Mansell assault and the Davidson murder. The defendant
Cite as 359 Or 16 (2016) 27
waived his Miranda rights and confessed to the murder. 296
Or at 87.
The defendant ultimately was convicted of the
Davidson murder, based in part on his confession. On
appeal, he argued that, among other things, the trial court
should have suppressed that confession because the police
had obtained it in violation of his right to counsel under
Article I, section 11, and the Sixth Amendment. According to
the defendant, his representation by an attorney on the forg-
ery charge insulated him from police questioning regarding
any other crime. Id. at 94.
This court rejected the defendant’s argument.
Beginning with Article I, section 11, the court explained
that the purpose of the guarantee is to ensure that, “once a
person is charged with a crime he or she is entitled to 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 pros-
ecution of its case against [the] defendant.” Id. at 93. To
effectuate that purpose, the court explained, there can be
no interrogation of a defendant concerning the events sur-
rounding the crime charged unless the state first notifies
the defendant’s lawyer and provides counsel a reasonable
opportunity to attend. Id.As for the scope of that right to counsel, the court
had the following to say:
“The development of the right to an attorney at pre-
trial confrontations between the state and the individual
reflects a concern for the preservation of the fairness of
trial and counsel’s effectiveness in defending against the
charge. Interrogations, like line-ups, polygraph sessions
and psychiatric examinations, are investigative tools
by means of which the state builds its case against the
accused. An attorney’s presence at these encounters may
serve to forestall the use of impermissibly derived evidence
at trial.
“Yet the [A]rticle I, section 11, guarantee of an attorney,
like the federal counterpart, remains focused on the trial;
that is, it is the protection of rights to which a defendant is
entitled in the trial itself which the guarantee is intended
28 State v. Prieto-Rubio
to preserve. In State v. Newton, 219 Or 788, 802-03, 636
P2d 393 (1981), the plurality opinion observed, in the lan-
guage of the federal analysis:
“ ‘The right to counsel attaches to certain evidence-
gathering processes which are deemed ‘critical stages’
of the prosecution as an extension of a defendant’s
right to representation by counsel in court. Any pre-
trial adversarial contact of the state and a defendant
at which some benefit of counsel would be lost if counsel
is not present, that is, at which the state’s case may be
enhanced or the defense impaired due to the absence of
counsel, may be considered a critical stage of the pros-
ecution at which defendant has a right to the presence
of counsel’
“It is the fairness of the ‘criminal prosecution’ which coun-
sel’s presence helps to ensure. For this reason the [A]rticle
I, section 11 right to an attorney is specific to the criminal
episode in which the accused is charged. The prohibitions
placed on the state’s contact with a represented defendant
do not extend to the investigation of factually unrelated
criminal episodes.”
Id. at 94-95 (footnotes omitted).
Turning to the Sixth Amendment right to counsel,
the court noted that, at that time, it appeared to be “of equal
scope” with the right under Article I, section 11. Id. at 95.
The court noted that the United States Supreme Court had
not yet directly addressed the issue, though it had implicitly
done so in Brewer. The court observed that, with the excep-
tion of New York, most other courts concluded that the right
to counsel prohibits interrogation about uncharged conduct
that is closely related to the charged offense. Sparklin, 296
Or at 95-98.
Applying that test to the facts of the case, the court
concluded that the Davidson case was “unrelated” to the
charged offense for which the defendant had retained coun-
sel, and so the questioning about the Davidson murder was
not improper. Id. at 98. Interestingly, in dictum, the court
added that the questioning about the Mansell assault was
improper, “[b]ecause [the] defendant was represented by an
attorney for the crimes against * * * Mansell.” Id.Cite as 359 Or 16 (2016) 29
C.  Later Doctrinal Developments
Meanwhile, in the years following Sparklin, most
lower federal courts continued to follow the rule that the
right to counsel prohibits police interrogation concerning
matters that are “closely related” to, or “inextricably inter-
twined” with the charged offense. See, e.g., U.S. v. Doherty,
126 F3d 769 (6th Cir 1997), abrogated by Cobb, 532 US at168 n 1 (acknowledging that tribal charge for sexual abuse
and federal charge for engaging in sexual abuse with a child
were inextricably intertwined because the same underlying
conduct formed the basis for both offenses); U.S. v. Arnold,
106 F3d 37, 42 (3rd Cir 1997), abrogated by Cobb, 532 US
at 168 n 1 (holding that a witness intimidation charge and
the attempted murder of the same witness were inextricably
intertwined for Sixth Amendment purposes because each
involved the same factual predicate and central purpose);
U.S. v. Kidd, 12 F3d 30, 32 (4th Cir 1993) (concluding that
two drug transactions taking place on different days were
not inextricably intertwined even though they involved the
same type of offense because each was factually distinct
from and independent of the other); U.S. v. Carpenter, 963
F2d 736, 740-41 (5th Cir 1992) (holding that burglary and
possession of firearm by a felon were not inextricably inter-
twined when firearm was discovered during the defendant’s
arrest for the burglary because the events leading up to the
firearm charge were distinct form those constituting the
burglary).
The Ninth Circuit adopted a slightly broader test,
holding that, to determine whether an event is inextricably
intertwined with the charged crime, courts must examine
“all of the facts and circumstances relating to the conduct
involved, including the identity of the persons involved, * * *
and the timing, motive, and location of the crimes. No single
factor is ordinarily dispositive.” U.S. v. Covarrubias, 179 F3d
1219, 1225 (9th Cir 1999), abrogated by Cobb, 532 US at 168
n 1.
Most state courts followed suit, almost all of them
relying on the Sixth Amendment and not independently
interpreting their state constitutional right-to-counsel
guarantee. See, e.g., Taylor v. State, 726 So 2d 841, 845 (Fla
30 State v. Prieto-Rubio
Ct App 1999) (police questioning violated right to counsel
because “the facts of the charged and uncharged offense are
inextricably intertwined”); People v. Clankie, 124 Ill 2d 456,
462-63, 530 NE2d 448 (1988) (“[S]ome technically distinct,
formally charged offenses are actually so closely related to
certain offenses for which formal charges have not been
made that the right to counsel for the charged offense can-
not constitutionally be isolated from the right to counsel for
the uncharged offense.”); Commonwealth v. Rainwater, 425
Mass 540, 547-48, 681 NE2d 1218 (1997), abrogated by Cobb,
532 US at 168 n 1 (questioning about uncharged conduct did
not violate right to counsel because the facts “were not inex-
tricably intertwined with” the charged conduct); In re Pack,
420 Pa Super 347, 355, 616 A2d 1006 (1992), abrogated by
Cobb, 532 US at 168 n 1 (once the right to counsel attaches,
defendant may be questioned about “unrelated offenses”).
In Cobb, the United States Supreme Court signifi-
cantly altered the legal landscape in holding that the Sixth
Amendment right to counsel is categorically offense-specific,
unqualified by any exception that applies to uncharged
offenses that are closely related to, or inextricably inter-
twined with, a charged offense. In that case, the defendant
was charged with burglary of a neighbor’s home and obtained
appointed counsel on that charge. Police later developed rea-
son to suspect that the defendant also was involved in the
murder of the neighbor’s wife and daughter, who had been
reported missing shortly after the burglary. The defendant
was arrested for those murders and given Miranda warn-
ings. He waived his Miranda rights and confessed to the
murders. Id. at 165-66.
The defendant ultimately was convicted of the mur-
ders. On appeal, he argued that the trial court erred in deny-
ing a motion to suppress the evidence of his confession on
the ground that it had been obtained in violation of his Sixth
Amendment right to counsel. The Texas Court of Appeals
agreed, concluding that the right to counsel in the burglary
cases precluded questioning about the murder because the
two offenses were “inextricably intertwined.” Id. at 166-67.
The United States Supreme Court reversed, holding
that, when the Sixth Amendment right to counsel attaches,
Cite as 359 Or 16 (2016) 31
it does so only with respect to the specific charged offense.
Id. at 172.1 The Constitution, the court held, “does not negate
society’s interest in the ability of police to talk to witnesses
and suspects, even those who have been charged with other
offenses.” Id. at 171-72. The Court acknowledged that a
number of lower federal courts and state courts had adopted
a rule, based on Brewer, foreclosing interrogation of a rep-
resented defendant on matters that were factually related
to the charged offense. Cobb, 532 US at 168. It nevertheless
held that those courts had read too much into Brewer, which
the Court said simply had not directly addressed the issue.
Cobb, 532 US at 168-69.
Justice Breyer, writing for four justices, dissented.
Among other things, he suggested that the majority’s narrow,
offense-specific test is likely to encourage strategic manip-
ulation of charging by prosecutors as a way to circumvent
a defendant’s constitutional right to counsel. Id. at182-83
(Breyer, J., dissenting). “The majority’s rule,” he complained,
“permits law enforcement officials to question those charged
with a crime without first approaching counsel, through the
simple device of asking questions about any other related
crime not actually charged in the indictment.” Id.2
In response, most state courts—those that have
adopted federal Sixth Amendment analysis—have adjusted
1
The Court held that the test for determining what is the same or a separate
“offense” is the test already used in determining the same or separate offenses
for double-jeopardy purposes, under Blockburger v. United States, 284 US 299,
304, 52 S Ct 180, 76 L Ed 306 (1932). Cobb, 532 US at 173. That test involves a
comparison of statutory elements; offenses are said to be “separate” when the
statute defining the elements of one offense requires proof of a fact that the other
does not. Id.2
The majority’s opinion in Cobb has generated a good deal of criticism on
precisely that ground. See, e.g., Andrew Hanawalt, Investigation of Represented
Defendants After Texas v. Cobb, 81 Tex L Rev 895, 896 (2003) (“Because prose-
cutors have almost absolute discretion in their charging decisions, Cobb invites
* * * strategic misbehavior.”); David J. D’Addio, Dual Sovereignty and the Sixth
Amendment Right to Counsel, 113 Yale LJ 1991, 1996 (2004) (Cobb permits fed-
eral, state, and tribal governments to “deliberately elicit incriminating statements
from the accused without the knowledge or presence of an attorney”); Michael J.
Howe, Tomorrow’s Massiah: Towards a “Prosecution Specific” Understanding of
the Sixth Amendment Right to Counsel, 104 Col L Rev 134, 149-50 (2004) (“Given
the abundance of overlapping and related statutory offenses, a single criminal
transaction can be characterized—and prosecuted—as a number of offenses, all
just different enough from one another to satisfy the Blockburger test.”).
32 State v. Prieto-Rubio
their case law accordingly, abandoning their precedents
that had extended the right to counsel to include uncharged
offenses that were closely related to, or inextricably inter-
twined with, the charged offense. See, e.g., People v. Slayton,
26 Cal 4th 1076, 32 P3d 1073 (2001); State v. Schneider, 347
Mont 215, 197 P3d 1020 (2008); Alston v. Commonwealth,
264 Va 433, 570 SE2d 801 (2002).
A notable exception is the Indiana Supreme Court.
In Jewell v. State, 957 NE2d 625 (2011), the court adhered
to a version of the inextricably intertwined test as a mat-
ter of independent interpretation of its state constitutional
guarantee of the right to counsel. In Jewell, the defendant
was arrested and charged with tattooing a minor, a mis-
demeanor, and he retained counsel to defend against that
charge. Meanwhile, police learned that the defendant may
have sexually abused the same minor. They arranged to
have the minor make recorded phone calls to the defendant,
and during those calls, defendant made incriminating state-
ments about the sexual abuse. The state charged the defen-
dant with sexual abuse of the minor, and he was ultimately
convicted of those charges. Id. at 627-28.
On appeal, the defendant argued that the trial
court erred in denying his motion to suppress the incrimi-
nating statements that had been recorded, arguing that the
statements had been obtained in violation of his right to
counsel, guaranteed by Article I, section 13, of the Indiana
Constitution. The court noted that, in response to Cobb, most
state courts had retreated from prior holdings that the consti-
tutional right to counsel prohibited questioning about matters
closely related to, or inextricably intertwined with, charged
offenses. Id. at 632-33.3 Nevertheless, the court held, the
right to counsel protections afforded by its state constitution
“are sometimes broader than those flowing from the Sixth
Amendment.” Id. at 633. The court acknowledged the state’s
interest in investigating criminal activities, as emphasized
by the Supreme Court in Cobb. Id. at 634-35. But it insisted
that the state’s interest does not eliminate “the defendant’s
3
Interestingly, the court observed that this court, in Sparklin, “appears
to recognize some version of the ‘inextricably intertwined’ exception under its
constitution,” which includes a right to counsel provision identical to Indiana’s.
Jewell, 957 NE2d at 633.
Cite as 359 Or 16 (2016) 33
right to aid of counsel before facing the full power of the pros-
ecutorial state.” Id. at 635. The court concluded:
“The ‘inextricably intertwined’ exception to the gen-
eral rule that [Article I,] Section 13’s right to counsel pro-
tection is offense specific applies when it was objectively
foreseeable that the pending offense, for which the right
to counsel has already attached, was so inextricably inter-
twined with the offense under investigation that the right
to counsel for the pending offense could not be constitution-
ally isolated from the right to counsel for the offense under
investigation. The inquiry focuses on the nature of the con-
duct involved rather than on the elements of the offenses.
A reviewing court must examine and compare all the facts
and circumstances—as known at the time of the investi-
gation—related to the conduct, including the nature of the
conduct, the identity of thepersons involved (including the
victim, if any), and the timing, motive, and location of the
crimes.”
Id. Applying that test to the facts at hand, the court con-
cluded that the circumstances of the charged offense of
unlawful tattooing of a minor, were not so linked to the
uncharged sexual abuse offenses that it was objectively
foreseeable to the police that the charged misdemeanor was
intertwined with the uncharged crimes. Id. at 636.
D.  The Correct Rule and Its Application
With the foregoing in mind, we return to Sparklin
and its application to this case. Sparklin is not a model of
clarity. At one point in the opinion, the court suggested
that the test under both state and federal constitutions is
offense-specific. 296 Or at 95. At another point, however,
the court referred to whether questioning is about “factu-
ally unrelated” conduct. Id. And, in dictum, the court sug-
gested that the police questioning about the Mansell assault
was improper, even though that questioning concerned an
entirely different offense from the charged offense. Id. at 98.
Not surprisingly, the state seizes on one reference and urges
us to interpret the decision to impose a very narrow, offense-
specific test that is not quite the statutory-elements test
that the United States Supreme Court adopted in Cobb, but
is close to it. And, equally unsurprisingly, defendant seizes
on the reference to whether charged and uncharged offenses
34 State v. Prieto-Rubio
are “factually related” and argues for a much broader inter-
pretation of the decision.4
We conclude that neither party’s contentions are
exactly on the mark. Beginning with the state’s argument,
it is true that, as we have just noted, Sparklin stated that
the right to counsel is “specific to the criminal episode in
which the accused is charged.” 296 Or at 95. But that, by
itself does not suggest what is meant by the term “criminal
episode.” And the term is employed in a variety of different
contexts in a variety of different ways. As then-Chief Judge
Brewer observed in Potter, 245 Or App at 6, “ ‘[c]riminal epi-
sode’ is a term that, at this point in time, has been used in so
many diverse statutory and constitutional contexts within
the criminal law that its precise meaning in any given con-
text, much less its origins, is not always clear.”
Certainly, there is a temptation to follow the lead
of the United States Supreme Court in Cobb and borrow
the definition that applies for double jeopardy purposes. See
4
Amici Curiae Oregon Justice Resource Center, American Civil Liberties
Union Foundation of Oregon, and Oregon Criminal Defense Lawyers Association
urge us to abandon Sparklin and adopt in its stead a “bright-line” rule that would
prohibit police from communicating at all with a represented person—and pre-
clude a represented person from waiving the right to counsel—without counsel
being present, regardless of whether the questioning would pertain to matters
factually unrelated to the charged conduct. Amici model their proposed rule on
one that the New York Court of Appeals adopted in People v. Rogers, 48 NY2d
167, 397 NE 2d 709 (1979). According to amici, this court “has not yet had the
opportunity to adopt” the New York rule, but should do so in this case.
We decline the invitation to adopt the New York rule. To begin with, amici
are incorrect in asserting that this court has not previously had the opportu-
nity to adopt the rule. The rule was explicitly identified, considered, and rejected
in Sparklin. 296 Or at 90-91, 95 (“The prohibition placed on the state’s contact
with a represented defendant do not extend to the investigation of factually unre-
lated criminal episodes.”). Aside from that, the New York Court of Appeals has
more recently qualified its bright-line rule, indeed, to such an extent that its own
members have recently complained that the rule now “is so complicated that it is
almost incomprehensible” and that it “regularly produces unjust results.” People
v. Lopez, 16 NY3d 375, 388, 947 NE2d 1155 (2011) (Smith, J., concurring); see
generally Pamela S. Karlan, Discrete and Relational Criminal Representation:
The Changing Vision of the Right to Counsel, 105 Harv L Rev 670, 679 (1992)
(“[T]he New York Court of Appeals recently rejected the existing state right-to-
counsel rule that the police could not subject a suspect represented on pending
charges to interrogation concerning new, unrelated charges. The court saw an
offender-specific, as opposed to an offense-specific, rule as excessively costly * * *
[and one that] perversely gave more protection to the ‘common criminal’ already
facing charges than to a ‘first-time arrestee.’ ”)
Cite as 359 Or 16 (2016) 35
ORS 131.505(4) (defining “criminal episode” for double jeop-
ardy purposes as “continuous and uninterrupted conduct
that establishes at least one offense and is so joined in time,
place and circumstance that such conduct is directed to the
accomplishment of a single criminal objective”). The state’s
reading of Sparklin comes quite close to that, although it
does not cite the statute itself. According to the state, the
term should be limited to the facts immediately preceding
or immediately succeeding the events that form the basis for
the charge.
Nothing in Sparklin, however, suggests that the
court intended to adopt such a narrow definition of the term.
Indeed, the state’s definition of “criminal episode” is hard to
square with the balance of the court’s opinion in that case,
especially its suggestion that the police had violated the
defendant’s right to counsel by interrogating him about the
Mansell assault that had occurred in Portland while he was
represented on the forgery charge, which had been based
on his attempt to use Mansell’s credit card some time later,
in Eugene. Moreover, giving the phrase “criminal episode”
too narrow a definition risks the sort of strategic charging
behavior that the Court of Appeals fairly identified in its
opinion in this case, echoing the criticism of the United
States Supreme Court’s decision in Cobb.
Defendant’s emphasis on whether the charged and
uncharged offenses are simply “factually related” is likewise
untenable. To begin with, the court in Sparklin did not use
that phrase or apply that test. Rather, it said that the right
to counsel does not limit police questioning about “factually
unrelated” criminal episodes. It is not quite logical to deduce
that, while questioning about factually unrelated criminal
episodes is permissible, questioning about factually related
criminal episodes is not. Aside from that, the phrase, with-
out more, is too amorphous to be of any value. Virtually any
conduct involving the same defendant can be said to be “fac-
tually related” at some level of abstraction and yet not really
implicate the concerns that underlie the state constitutional
guarantee of the right to counsel.
The answer to the conundrum may be found in
recalling precisely those underlying concerns. The court’s
36 State v. Prieto-Rubio
opinion in Sparklin suggests something narrower than just
that there be some factual relation between charged and
uncharged offenses; rather, the charged and uncharged
offenses must be related in such a way that questioning
about the latter is likely to compromise the right to counsel
as to the former. As the court in Sparklin explained, the
purpose of the Article I, section 11, right is to ensure that a
defendant charged with a crime has the benefit of an attor-
ney’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.” 296 Or at 93 (emphasis added). Just because
police ask questions carefully avoiding the facts immediately
surrounding the criminal episode of the charged offense
does not necessarily mean that those questions will not
elicit information that is incriminating about that charged
offense. It would seems to follow from Sparklin that, to the
extent that questioning about uncharged offenses may fore-
seeably lead to such incriminating information about the
charged offense, it is foreclosed by the state constitutional
right to counsel. Otherwise, the state constitutional guaran-
tee of the right to counsel would be circumvented.
In that regard, Sparklin recalls the Indiana Supreme
Court’s decision in Jewell, which was based on the Indiana
Constitution’s identical right-to-counsel guarantee. The
court there concluded that whether it is objectively foresee-
able that questioning about uncharged conduct will implicate
a charged offense for which counsel has been retained will
depend on the facts and circumstances known at the time of
the investigation, concerning “the nature of the conduct, the
identity of the persons involved, * * * and the timing, motive,
and location of the crimes.” Jewell, 957 NE2d at 935. Those
factors likewise are consistent with those that the Court of
Appeals mentioned in this case, including temporal proxim-
ity, location, nature of defendant’s conduct, and the nature
of the investigation process itself and whether it involves the
same or separate personnel. Prieto-Rubio, 262 Or at 157-59.
We agree that whether charged and uncharged offenses are
sufficiently related as to implicate the state constitutional
right to counsel will depend on the facts and circumstances
of each case and whether they establish that it is reasonably
Cite as 359 Or 16 (2016) 37
foreseeable to a person in the position of the questioner that
questioning will elicit incriminating information involving
the charged offense for which the defendant has obtained
counsel. That is an objective test that does not turn on the
subjective impression of the questioner.
Turning to the facts of this case, there is no dispute
that, when the state charged defendant in the case involving
A, his Article I, section 11, right to counsel attached and that
the right applied to the particular stage of the proceedings
at which Rookhuyzen questioned him. The question then is
whether defendant’s Article I, section 11, right in the case
involving A foreclosed questioning about his alleged abuse
of K and L. The test, as we have just concluded, is whether
it was reasonably foreseeable to a person in Rookhuyzen’s
position, that questioning about K and L would elicit incrim-
inating information about the charged abuse of A, for which
defendant had retained counsel. We conclude that it was
foreseeable that the detective’s questioning would have that
effect.
The investigations of A, K, and L were interrelated
from the beginning, as Rookhuyzen acknowledged. All of
the crimes were committed at the same place—defendant’s
home. All of the offenses involved similar types of physical
conduct, and all involved similar victims—children who
were members of defendant’s family. The state itself invoked
those very similarities in arguing to consolidate the cases
because the crimes alleged against defendant “are of the
same or similar character and show a common scheme or
plan.” Rookhuyzen handled the investigation as to all three
of the victims. Indeed, the state alleged in its motion to con-
solidate that the crimes alleged against defendant “involve
many of the same witnesses and arise from the same inves-
tigation.” Moreover, Rookhuyzen explained that, although
his later questioning of defendant focused on K and L—and
not A—his questioning covered the “universe” of potential
victims and that it was “impossible” to have a conversa-
tion with defendant “and not have some overlap” between
the charged and uncharged offenses, demonstrating that a
reasonable person in Rookhuyzen’s position would have fore-
seen the effect that the questioning would have.
38 State v. Prieto-Rubio
To be sure, the offenses occurred at substantially
different times, and, at least in some cases, that might weigh
against concluding that the offenses are sufficiently factu-
ally related. But in this case, the difference in times does not
alter what Rookhuyzen candidly acknowledged—that it was
highly likely that his questioning would have some overlap
with the charged offense.
The remedy for a violation of Article I, section 11,
is the exclusion of any prejudicial evidence obtained as a
result of that violation. State v. Dinsmore, 342 Or 1, 10, 147
P3d 1146 (2006). In this case, defendant contends that the
evidence that the state obtained in violation of his right to
counsel was prejudicial, and the state does not contend oth-
erwise.5 In fact, as we have noted, the trial court expressly
referred to the incriminating statements that defendant had
made to Rookhuyzen. We therefore conclude that the Court
of Appeals correctly determined that Rookhuyzen’s ques-
tioning in this case violated defendant’s Article I, section 11,
right to counsel and that the trial court erred in denying his
motion to suppress.
The decision of the Court of Appeals is affirmed.
The judgment of the circuit court is reversed, and the case
is remanded to the circuit court for further proceedings.
5
It could be argued that a violation of defendant’s Article I, section 11, right
to counsel in the case involving the abuse of A would justify the exclusion of evi-
dence only as to that case, not as to the case involving the abuse of K and L, for
which defendant had not yet retained counsel. The state, however, advanced no
such argument in this case, and we express no opinion one way or the other about
it.