Oatney v. Premo

• Decision Date: 09 December 2015
• Docket Number: A147931.,04C12723
• Citation: 275 Or.App. 185,369 P.3d 387
• Parties: Billy Lee OATNEY, Jr., Petitioner–Appellant, v. Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant–Respondent.
• Court: Oregon Court of Appeals

275 Or.App. 185
369 P.3d 387

Billy Lee OATNEY, Jr., Petitioner–Appellant,
v.
Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant–Respondent.

04C12723
A147931.

Court of Appeals of Oregon.

Argued and Submitted March 14, 2014.
Decided Dec. 9, 2015.

369 P.3d 389

Daniel J. Casey argued the cause and filed the briefs for appellant.

Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, Laura S. Anderson, Assistant Attorney General, and Jeremy C. Rice, Assistant Attorney General.

Before NAKAMOTO, Presiding Judge, and SERCOMBE, Judge, and EGAN, Judge.^*

SERCOMBE, J.

275 Or.App. 187

In 1998, a jury found petitioner guilty of eight counts of aggravated murder for killing an acquaintance. The same jury determined that petitioner should be sentenced to death, and the trial court imposed that sentence. On direct review, the Supreme Court affirmed. State v. Oatney, 335 Or. 276, 66 P.3d 475 (2003), cert. den., 540 U.S. 1151, 124 S.Ct. 1148, 157 L.Ed.2d 1045 (2004). In 2004, petitioner filed this action against defendant superintendent, seeking post-conviction relief, ORS 138.510 to 138.680, on numerous grounds, including that his trial counsel provided inadequate and ineffective assistance of counsel under Article I, section 11, of the Oregon Constitution and the Sixth and Fourteenth Amendments to the United States Constitution during petitioner's trial by failing to seek suppression of statements and testimony derived from a statement that petitioner made about the murder in exchange for a promise of immunity from the district attorney. The post-conviction court rejected petitioner's claims and entered a judgment denying relief. Petitioner appeals, raising 25 assignments of error. We conclude that trial counsel performed inadequately in failing to move to suppress statements and testimony of petitioner's coconspirator, Willford Johnston, because Johnston's statements were used in violation of the immunity promised by the district attorney. We further conclude that counsel's inadequate performance prejudiced petitioner. Accordingly, the post-conviction court erred in failing to grant post-conviction relief. Our conclusion obviates the need to consider petitioner's remaining assignments of error. We reverse and remand.

I. UNDERLYING FACTS

We begin with the facts regarding the underlying crime and petitioner's criminal trial, which we take from the Supreme Court's opinion on direct review. We state

369 P.3d 390

the facts in accordance with the post-conviction court's findings that are supported by the record, as well as the undisputed facts. Montez v. Czerniak, 355 Or. 1, 8, 322 P.3d 487, adh'd to as modified on recons., 355 Or. 598, 330 P.3d 595 (2014). We set out additional facts later in the opinion.

"The victim disappeared on August 27, 1996. Her family told police that defendant might have information about

275 Or.App. 188

her whereabouts because the victim had been planning to meet with defendant to ask him to make some jewelry for her upcoming wedding. On September 2, 1996, the Tualatin police interviewed defendant, who stated that he had not seen the victim for three weeks. Later that evening, a Milwaukie police officer, who had no knowledge of the Tualatin police's questioning of defendant regarding the victim's disappearance, stopped defendant because the license plate light on his van was not working. Defendant's license check revealed no reason to detain him, but the police determined that defendant's passenger, Johnston, had an outstanding warrant for his arrest for a parole violation. The police arrested Johnston.

"During the traffic stop and investigation of Johnston, one of the police officers saw defendant and Johnston moving a duffel bag inside the van as if to conceal it. The officer asked defendant for consent to look into the bag, and defendant consented. The police found, among other things, a replica of a Colt .45, a stun gun, a dart gun, a large knife, a lock-pick set, a pair of scissors, and a roll of duct tape. The police inventoried the items and returned them to defendant, but did not detain him further.

"On September 9, 1996, the victim's badly decomposed body was found in Champoeg Park. In a subsequent interview with defendant, the Tualatin police learned of Johnston's September 2, 1996, arrest. They listened to tapes of Johnston's telephone conversations with defendant from jail and learned that defendant might have been involved in the victim's disappearance.¹ Over the next few weeks, the Tualatin police interviewed defendant several times. They also searched defendant's apartment and found blood matching the victim's blood on the carpet.² The Tualatin police continued to keep defendant under surveillance. After obtaining a search warrant, the police searched defendant's van. Among other items, they found the items from the duffel bag that the Milwaukie police had found during the September 2, 1996, stop.

"Meanwhile, as a result of the continuing investigation of the victim's death, the state charged Johnston with one count of aggravated murder. Johnston pleaded guilty to aggravated murder, and, in exchange for his cooperation and testimony, the state agreed not to seek the death penalty.

275 Or.App. 189

"Defendant was ultimately charged with eight counts of aggravated murder. At trial, both defendant and Johnston testified. Johnston testified that, while he was staying with defendant at defendant's apartment, defendant said that he had a date with the victim, left the apartment, and brought the victim back with him later that evening. While Johnston was on the telephone in another room, he heard defendant's stun gun being used. Johnston returned to the living room and saw the victim on the floor with defendant holding his stun gun to her neck. Johnston and defendant then tied up the victim and took her to the bedroom. They cut off her clothes with scissors and [Johnston] raped and [both Johnston and petitioner] sodomized her. After forcing her to give them the personal identification number to her bank card, defendant sent Johnston out to get some money from an ATM using the victim's card. When Johnston returned, he saw that the victim had blood on her face and was not moving. Johnston testified that defendant had told him that defendant had hit and choked the victim because she ‘just wouldn't [have sex with] me.’ Defendant said that he had tried to kill her, but ‘the [victim] just won't die.’ Defendant and Johnston then held a plastic bag over the victim's head until she stopped breathing.

"Defendant argued at trial that Johnston had lied in his testimony to avoid the death

369 P.3d 391

penalty. Defendant testified that Johnston had killed the victim while defendant was away from the apartment. According to defendant, he had not learned of the victim's murder until the following day. He testified that he had helped Johnston cover up the murder because he had been afraid of being implicated in the murder because it had occurred in his apartment.

"The jury convicted defendant of all eight counts of aggravated murder. In a separate sentencing proceeding, the jury determined that defendant had acted deliberately, that defendant posed a continuing risk to society, and that defendant should receive a death sentence. The trial judge then entered a sentence of death. After defendant's conviction, the court sentenced Johnston to life without the possibility of parole.

"1. The police suspected that Johnston and defendant were using a code to discuss plans to dispose of the victim's property. For example, the two men discussed their desire to

275 Or.App. 190

dispose of ‘camping stuff’ and the possibility of having a ‘garage sale.’ Police were familiar with that type of code, which they suspected that defendant and Johnston had learned while in prison together for previous offenses.

"2. Defendant had vacated the premises, and his former landlord had consented to the search."

Oatney, 335 Or. at 278–80, 66 P.3d 475 (third and fourth brackets in original).

As that rendition of the facts demonstrates, at petitioner's criminal trial, petitioner and Johnston agreed that the murder had been committed at petitioner's apartment. That was further evidenced by the fact that the police discovered the victim's blood on the carpet in the apartment. Johnston testified that he and petitioner committed the sexual assault and murder together; petitioner testified that Johnston committed the sexual assault and murder alone and that petitioner only helped him clean up the apartment and dispose of the victim's belongings. The state also presented out-of-court statements that Johnston made during the investigation. Apart from Johnston's testimony and out-of-court statements, the state presented no direct evidence that petitioner participated in the sexual assault and murder. Thus, the case ultimately amounted to a credibility contest between petitioner and Johnston.

II...