concurring.
The majority concludes that interrogating defendant without providing his attorney notice and an opportunity to attend violated the right to counsel under Article I, section 11, of the Oregon Constitution. Defendant was questioned on crimes apparently unrelated to the charges of aggravated murder on which he was represented. The majority reasons that it was nonetheless objectively foreseeable that information obtained could prejudice defendant in the sentencing phase of that case. I agree entirely with the majority’s analysis and result, but write separately to emphasize that the nature of an aggravated murder prosecution particularly compels reversal in this case.
Throughout Detective Stoelk’s interrogation, defendant faced the possibility of a death sentence. ORS 163.150. Death penalty prosecutions are inherently different from the typical criminal case and should be accorded different treatment.
“[D]eath as a punishment is unique in its severity and irrevocability. * * * When a defendant’s life is at stake, the [United States Supreme] Court has been particularly sensitive to insure that every safeguard is observed.” Gregg v. Georgia, 428 US 153, 187, 96 S Ct 2909, 49 L Ed 2d 859 (1976) (plurality opinion).
The safeguard at issue here is the right to counsel under Article I, section 11, of the Oregon Constitution.1 As the Oregon Supreme Court has interpreted that provision, “[o]nce 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.” State v. Sparklin, 296 Or 85, 93, 672 P2d 1182 (1983) (emphasis supplied).
When Stoelk questioned defendant about a statutory rape and a shooting at an apartment, the detective knew that defendant had been appointed counsel on charges of *200aggravated murder stemming from two other homicides. The state at that time had not yet decided to forgo the death penalty in those cases,2 and defendant continued to face the possibility of execution. To obtain a sentence of death, the state had to prove more than the elements of aggravated murder under ORS 163.095(1)(d) and 163.095(2)(d). It was also required to secure, beyond a reasonable doubt, the jury’s affirmative response to each of the four questions under ORS 163.150(1)(b). State v. Montez, 309 Or 564, 613, 789 P2d 1352 (1990); State v. mile, 115 Or App 47, 56, 839 P2d 712 (1992), aff'd 317 Or 487, 858 P2d 128 (1993).
ORS 163.150(l)(b) provides:
“Upon the conclusion of the presentation of the [penalty phase] evidence, the court shall submit the following issues to the jury:
“(A) Whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that death of the deceased or another would result;
“(B) Whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society;
“(C) If raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased; and
“(D) Whether the defendant should receive a death sentence.”
Typically, “future dangerousness” under ORS 163.150-(1)(b)(B) is the pivotal issue at the sentencing phase of a death penalty case. The most common way of proving that prong is through evidence of the defendant’s other criminal conduct.3 That conduct therefore becomes essential to the *201state’s aggravated murder case. As such, interrogating defendant here about his sexual relationship with a minor and his involvement in a different shooting concerned “events surrounding the crime charged,” i.e., aggravated murder.
It makes no difference that the state later chose not to pursue the death penalty. It is the time of interrogation that is relevant, and at that time defendant faced a death sentence. In such instances, it is not only the courts, but also the police, who should “insure that every safeguard is observed.” Gregg, 428 US at 187. By conducting an interrogation without providing defendant’s attorney with notice and a reasonable opportunity to attend, Stoelk violated defendant’s right to counsel under Article I, section 11.
Article I, section 11, provides, in part:
“In all criminal prosecutions, the accused shall have the right * * * to be heard by himself and counsel!.]”
Stoelk interrogated defendant on March 17, 1994. According to the record, the prosecutor sent defense counsel a letter dated April 19, 1994, “to confirm that the state will not be seeking a death penalty in this case.” There is no other evidence in the record indicating whether the state had decided not to pursue the death penalty earlier.
See State v. Tucker, 315 Or 321, 337, 845 P2d 904 (1993) (supporting broad use of defendant’s “prior criminal conduct” under ORS 163.150(1)(b)(B)); State v. *201Williams, 313 Or 19, 43, 828 P2d 1006, cert den 506 US 858 (1992) (defendant’s arson activities and threats relevant to prove future probable violent behavior); Montez, 309 Or at 611 (defendant’s confession of prior crimes relevant under ORS 163.150(l)(b) and thus admissible in penalty phase); State v. Moen, 309 Or 45, 73, 786 P2d 111 (1990) (even unadjudicated criminal acts are relevant under ORS 163.150(1)(b)(B)).