by Mark Wilson

 The Oregon Court of Appeals held that a prisoner who solicited another prisoner to kill a witness cannot be convicted of attempted aggravated murder. It also held that body-wire evidence obtained by the prisoner should have been suppressed.

Marcellus Ramon Allen was arrested on a May 2012 murder, and counsel was appointed to represent him. While in jail awaiting trial, Allen offered money to another prisoner identified as Ali, to kill a key witness in the murder case.

Ali alerted the detectives investigating the 2012 murder. At their request, Ali 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. The charges were based on his statements to Ali, both before and after he started wearing the body wire.

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

Nevertheless, the 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 of the murder charge. Allen’s conviction was later reversed, however, because the trial court improperly denied his motion to suppress evidence and failed to give a jury concurrence instruction on principal or accomplice liability. See: State v. Allen, 288 Or App 244, 406 P3d 89 (2017).

The attempted aggravated murder and conspiracy charges proceeded to trial, and the court denied Allen’s motion for judgment or acquittal. A jury then convicted him of attempted aggravated murder and conspiracy to commit aggravated murder.

The Oregon Court of Appeals reversed Allen’s convictions, 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.

While the appeal was pending, the Oregon Supreme Court held that an “attempt” occurs when a person intentionally engages in conduct constituting a substantial step toward the commission of a crime. Soliciting another person to commit that crime does not constitute “attempt.” See: State v. Kimbrough, 364 Or 66, 431 P3d 76 (2018).

After Kimbrough was decided, the court asked Allen and the State for supplemental briefing.

The state conceded, and the court agreed, “that under Kimbrough, defendant’s attempted aggravated murder convictions must be reversed.”

“Although defendant took a step toward soliciting Ali to commit murder, there is no evidence that defendant intended to personally engage in conduct that would constitute any element of the crime of aggravated murder,” the court found. Accordingly, “the trial court erred in denying defendant’s motion for judgment of acquittal.”

Turning to the body-wire suppression, the court noted that after oral argument, the Supreme Court held that the constitutional right to counsel “prohibits the interrogation of a suspect about uncharged conduct that is ‘sufficiently related’ to the charged conduct for which the suspect has retained counsel.” See: State v. Prieto-Rubio, 359 Or 16, 376 P3d 255 (2016). After Allen’s oral arguments, the court followed Prieto-Rubio in a factually similar case, holding that the body-wire evidence should have been suppressed. See: State v. Savinskiy, 286 Or App 232, 399 P3d 1075. Yet, the Oregon Supreme Court later reversed Savinskiy in a 4-3 decision.

“In this case, as in Savinskiy, any evidence that the state might have gathered from Ali’s body wire about the conspiracy charge necessarily implicated defendant in the charged murder,” the court found. “The additional fact, as in Savinskiy, that the same detective who had investigated the murder was investigating the uncharged conspiracy to commit murder offense leads to the conclusion that it was reasonably foreseeable that questioning defendant about the uncharged offense would elicit incriminating information involving the charged murder offense.”

Accordingly, “the trial court erred in denying defendant’s motion to suppress.” See: State v. Allen, 296 Or App 226, _ P3d _ (2019).

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