Before trial, defendant moved to suppress the statements 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 P.2d 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 law in Oregon is well-established that officers have a right to interview a defendant in these circumstances even though the defendant is represented by an attorney on other charges. The case comes within the general principles of State v. Sparklin, 296 Or. 85 (1983). In almost every case where a defendant has pending charges and has an attorney on those charges and where the defendant talks to police officers about unrelated charges, there is always a very real possibility that what he says on the unrelated charges might be used in the proceeding on the other charges for which he has an attorney — particularly in the sentencing process. As the Court reads the cases, they do not hold that because there is a possibility or even a probability that what the defendant said might be used in a sentencing proceeding in another case invalidates the interview.
Thus, this court eventually concluded that a person who is charged with a crime "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 prosecution of its case against defendant."State v. Sparklin , 296 Or. 85, 93, 672 P.2d 1182 (1983). As Sparklin emphasizes, however, "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 to preserve."
Second, the court pointed out that allowing the type of questioning at issue in this case "would largely nullify the clear rule of law announced in State v. Sparklin , 296 Or. 85, 93, 672 P.2d 1182 (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.’ " Id. at 484, 489 P.3d 1071
We conclude that the state has misunderstood one of our prior cases and that the proper inquiry is not whether the cases are “inextricably intertwined,” but, rather, whether the cases are “factually unrelated.” In State v. Sparklin, 296 Or. 85, 672 P.2d 1182 (1983), the defendant was arrested in Eugene for using a stolen credit card belonging to Mansell. After the defendant had been arraigned and provided with appointed counsel, Portland detectives interrogated him
Defendant responds that, although this court has not yet held that the right against self-incrimination protected under Article I, section 12, applies in noncompelling circumstances, it should do so in this case. Defendant notes that, in a footnote in State v. Sparklin, 296 Or. 85, 92 n 9, 672 P.2d 1182 (1983), this court suggested that the right to an attorney under Article I, section 11, is as important during the investigative phase of a case as it is during the trial itself. In a similar way, defendant reasons, the right to remain silent is just as important during the investigative phase as it is during trial.
121 Or App at 325. The dissent says that result is dictated by several precedents including State v. Spencer, 305 Or. 59, 750 P.2d 147 (1988), and State v. Sparklin, 296 Or. 85, 672 P.2d 1182 (1983). In Spencer, the court modified its holding in State v. Newton, 291 Or. 788, 636 P.2d 393 (1981), which held that the right to seek the advice of counsel attaches only after a formal charge is filed. It said:
The right to counsel under Article I, section 11, attaches automatically when the state initiates a "criminal prosecution" against an individual. State v. Sparklin, 296 Or. 85, 92, 672 P.2d 1182 (1986). Once the right to counsel attaches, an individual "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 prosecution of its cause against [him]."
State v. Davis, supra, 99 Or App at 360-61. The Court of Appeals further concluded, citing State v. Sparklin, 296 Or. 85, 672 P.2d 1182 (1983) (discussed infra), that the interrogation on the uncharged murder, which was factually unrelated to the pending robbery charges, did not violate defendant's rights to counsel under Article I, sections 11 or 12, of the Oregon Constitution, or the Fifth or Sixth Amendments to the Constitution of the United States. State v. Davis, supra, 99 Or App at 361-62.
" (Emphasis in original.) This brings us to State v. Mains, 295 Or. 640, 669 P.2d 1112 (1983), and State v. Sparklin, 296 Or. 85, 672 P.2d 1182 (1983), from which it could be inferred that this court has already adopted an Oregon Miranda rule. In fact, the Court of Appeals has so inferred in State v. Kell, 77 Or. App. 199, 712 P.2d 827 (1986), and State v. Rowe, 79 Or. App. 801, 720 P.2d 765 (1986).