by Mark Wilson

In a 4-to-3 ruling, departing from its previous recent decisions, the Oregon Supreme Court held on May 23, 2019 that secretly recording a prisoner’s solicitation of another prisoner to kill two witnesses and assault a prosecutor in his pending criminal case did not violate his constitutional right to counsel.

Yevgeniy Pavlovich Savinskiy was jailed and appointed a defense attorney on numerous charges following a shootout with police and high-speed car chase. While in jail awaiting trial, Savinskiy offered another prisoner money and weapons to assault a prosecutor and kill two of the witnesses against him.

The prisoner alerted authorities, who used the information to obtain sealed ex parte court orders to secretly record Savinskiy’s conversations with the informant. Prosecutors then used the body wire evidence to charge Savinskiy with two counts of conspiracy to commit murder of the witnesses and one count of conspiracy to assault the prosecutor. Those charges were included in an amended indictment.

The trial court granted Savinskiy’s motion to suppress statements he made about the original charges, because the secretly recorded statements violated his constitutional right to counsel. However, the court refused to suppress his statements related to the new conspiracy charges.

The new and original charges were tried together, and the state naturally introduced Savinskiy’s statements about soliciting the murders and assault. A jury convicted him of both the original and new solicitation charges.

Following the state Supreme Court’s decision in State v. Prieto-Rubio, 359 Or. 16, 376 P.3d 255 (Or. 2016), the Oregon Court of Appeals agreed with Savinskiy that the secretly recorded statements violated his right to counsel. As such, the trial court’s refusal to suppress those statements required reversal of his convictions on both the original and new charges. See: State v. Savinskiy, 286 Or. App 232, 399 P.3d 1075 (Or. Ct. App. 2017).

However, a majority of the Oregon Supreme Court distinguished Savinskiy’s case from Prieto-Rubio and reversed. “Prieto-Rubio’s test is phrased broadly enough that it can reach questioning about the kind of new criminal activity in which defendant was engaging,” the Court observed. “However, there are important factual distinctions between the uncharged criminal activity that the officers sought to investigate in Prieto-Rubio and the uncharged criminal activity that officers sought to investigate here.”

Specifically, the Supreme Court found two factual distinctions were “constitutionally significant.” First, in contrast to Prieto-Rubio, “any duplication between the facts and circumstances of defendant’s new criminal activity and the facts and circumstances of his charged crimes is minimal.” Second, “and more significantly, unlike the uncharged crimes in Prieto-Rubio, defendant’s uncharged criminal activity began after he was charged with the original offenses, and the uncharged criminal activity involved his ongoing effort to harm the prosecutor and witnesses against him to obstruct the pending prosecution,” the Court wrote.

The dissent criticized the majority’s decision as departing “from this court’s prior cases and the constitutional principles that underlie them in order to reach its preferred result given the particular facts of this case.” The majority “offers no principled reason for its result,” the dissent stated. “Instead ... it attempts to distinguish this case from this court’s precedents based on differences that are irrelevant to the legal issue.”

A legal test that “permits the state to question a defendant without counsel about subjects that could incriminate him on charged crimes is antithetical to a defendant’s constitutional right to counsel,” the dissent declared. “And permitting such questioning encourages officers ‘to undermine the suspect’s decision to rely upon counsel,’ which not only leaves a defendant’s rights unprotected, it ‘subverts the attorney-client relationship.’” See: State v. Savinskiy, 364 Or. 802, 441 P.3d 557 (Or. 2019).

In a separate but similar case, the Oregon Court of Appeals held in a February 2019 ruling, before the Supreme Court’s decision in Savinskiy, that a prisoner who solicited another prisoner to kill a witness could not be convicted of attempted aggravated murder, and body wire evidence should have been suppressed.

Marcellus Ramon Allen was arrested for a May 2012 homicide, and counsel was appointed to represent him. While in jail awaiting trial, Allen offered money to another prisoner to kill a key witness. That prisoner alerted detectives, then agreed to wear a body wire to record conversations with Allen concerning the murder-for-hire plot.

Allen was charged with attempted aggravated murder, conspiracy to commit aggravated murder and other offenses. Those charges were based on his statements to the informant, both before and after he began wearing the body wire.

The charges were initially joined with the original murder charge, but the trial court later granted Allen’s motion to try the charges separately because it would violate his right to counsel if evidence gathered from the body wire was offered during his murder trial.

Nevertheless, the trial court held that the body wire evidence was admissible in the attempted aggravated murder and conspiracy to commit murder trial. A jury ultimately convicted Allen; his conviction was subsequently reversed, and he was tried again and re-convicted of the same offenses.

The Oregon Court of Appeals reversed, holding that the trial court improperly denied Allen’s motion for judgment of acquittal on the attempted aggravated murder charges. It also found that the court erroneously refused to suppress the body wire evidence, based on Prieto-Rubio. See: State v. Allen, 296 Or. App 226, 438 P.3d 396 (Or. Ct. App. 2019). That ruling is no longer good law with respect to suppressing the body wire evidence, however, following the Oregon Supreme Court’s more recent decision in Savinskiy. 

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