State v. Benton

Decision Date09 February 2022
Docket NumberA164057
Citation317 Or.App. 384,505 P.3d 975
Parties STATE of Oregon, Plaintiff-Respondent, v. Lynn Edward BENTON, Defendant-Appellant.
CourtOregon Court of Appeals

David Sherbo-Huggins, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Michael A. Casper, Assistant Attorney General, and Christopher A. Perdue, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Ortega, Presiding Judge, and Shorr, Judge, and Powers, Judge.

ORTEGA, P. J.

Defendant appeals from a judgment of conviction for aggravated murder and attempted murder. A jury found defendant guilty of two counts of aggravated murder (Counts 1 and 2), two counts of conspiracy (Counts 6 and 7), and one count of attempted murder (Count 8), and the trial court merged the guilty verdicts on Counts 2, 6, and 7 into the guilty verdict on Count 1, for a single conviction of aggravated murder.1 Defendant asserts 31 assignments of error on appeal.2 In this opinion, we address only defendant's assignments of error 6 through 17, and, based on our disposition of those assignments, we need not reach defendant's remaining assignments of error.

In assignments of error 11 through 17, defendant challenges the trial court's denials of defendant's demurrers, motions to dismiss, and motions for judgment of acquittal based on an alleged variance in proof between the indictment and the evidence presented at trial for Counts 6 through 8. Although, as explained below, we reverse Count 8 because the trial court ultimately dismissed that count based on defendant's post-judgment motion, we consider defendant's assignments with respect to Count 8, as well as with respect to Counts 6 and 7, because he argues that the trial court's failure to dismiss Count 8 earlier in the proceedings prejudiced his trial. We conclude that the trial court did not err.

In assignments of error 7 through 10, defendant challenges the trial court's denial of his motion to suppress statements defendant made to a jailhouse informant on the ground that the informant was a state agent. We conclude that the jailhouse informant was acting as a state agent after July 2, 2015, triggering the state constitutional protections of the exclusionary rule. Thus, the trial court erred when it denied defendant's motion to suppress statements made by defendant to the informant after that date. We also conclude that that error was not harmless and reverse and remand Counts 1, 2, 6, and 7 on that basis. We also reverse Count 8, but without a remand. The trial court granted defendant's post-judgment motion and dismissed Count 8, which ruling is not challenged on appeal; however, the trial court did not enter a corrected judgment dismissing Count 8. Thus, we reverse defendant's conviction on Count 8 for the trial court to enter a judgment reflecting its dismissal of that count.

Finally, we also address defendant's sixth assignment of error, because it raises an issue of law that will likely arise on remand and we determine that it is appropriate to address the merits of that issue in this opinion. In that assignment, defendant argues that the trial court erred when it refused to conduct an in camera review of the records of Dr. Guyton, who was hired by the attorney for the jailhouse informant to perform a psychological evaluation of him in 2014. We conclude that the trial court did not err in refusing to conduct an in camera review, because defendant did not make a sufficient threshold showing that those records contain Brady material.

I. BACKGROUND FACTS

Because of the complexity of this case and the varied assignments of error that we address, we discuss many facts, both historical and procedural, only in the sections pertaining to specific assignments of error. The following recites only the most pertinent trial testimony to provide context for the more specific discussions in our analysis.

Defendant was a police sergeant in Gladstone, which is located in Clackamas County. On the evening of May 28, 2011, defendant, Hopperstad, and Scholz found the victim, defendant's estranged wife, dead inside the beauty salon that she owned, which was located across the street and down the block from the police station. Defendant was on duty when Hopperstad retrieved him to open the salon because the victim was not responding to Scholz's knocks on the door. Defendant opened the salon door with a key, entered using his flashlight, and found the victim in the back-office area of the salon. Defendant reacted by screaming, sobbing, and falling to his knees, but he did not fully enter the back room. He appeared to check the victim's pulse; Hopperstad asked if they should call for emergency medical assistance, and defendant said no. Defendant, who at one time was a paramedic, did not attempt any first aid on the victim, and Hopperstad, also a trained first responder, deferred to defendant's assessment because defendant had more experience. Hopperstad asked defendant if he should call someone over; defendant said no and then radioed for assistance.

A sergeant responded to the scene and called the medical examiner. An investigator for the medical examiner conducted an initial examination of the victim and, due to her lack of experience, made a preliminary assessment at the scene that the victim died of natural causes. After a more senior investigator examined the body and saw reasons to question that assessment, the investigation shifted, and the medical examiner conducted an autopsy. The examiner found that, externally, the victim's left eye was black and she had cuts on her lips, an abrasion on her chin, a left scalp hemorrhage, bruises on her arms and left thigh, and indications of blunt force trauma. Internally, the victim had broken ribs and a lacerated liver, and she had been shot in the back, with the .25 caliber bullet still lodged in her spinal cord. She also had injuries to the structures in her neck. The examiner determined that the cause of death was "gunshot wound to the back, neck compression/strangulation, and blunt force chest and abdominal trauma."

Just after midnight on the day that the victim died, believing that the victim had died of natural causes, the police detective interviewed defendant. Defendant reported that he and the victim had started dating in about 2008, registered a domestic partnership in 2009, and married in October 2010. In 2010, defendant, who is a trans man, had begun to transition, which included hormone therapy; he explained that, as he became more masculine, the victim had problems with it. Around April 1, 2011, about two months before the victim died, they had a huge fight, and defendant moved out of the couples’ home and in with his sister. He said that he had not seen or spoken with the victim for about two weeks before her death.

When asked about physical altercations, defendant reported that one time he lost his temper and "kind of pinned [the victim] into a corner just with my arm and made her listen to me." He stated that he had also learned from the victim's mother that the victim claimed that he "had gotten physical with her" and that he was concerned about that when he left in April; the victim was claiming that he had caused a bruise on her arm and he was nervous about how that could affect his career. On being asked, defendant reported that the victim was taking several medications, including Celexa, Flexeril, Oxycodone for pain, and that "I learned that she just got put on some Fentanyl patches" for pain in her shoulder. The detective also seized two cell-phones that defendant had on him during the interview. Defendant at first only gave the detective his work phone, but the other phone rang during the interview. Defendant said that he had forgotten about that phone and did not use it much, but also said he did use it since he and the victim had split up, and handed it over. The police later determined that defendant used the phone often, including to talk to his friend, Campbell. Defendant had also received a call earlier that day in front of two detectives that made him "very agitated and frustrated." The police determined that that call likely came from Campbell's phone.

Later, the same detective who interviewed defendant met him and his sister at his sister's house. There, the detective asked defendant about scratches and red marks on his arm. In response, defendant went pale, hesitated, and then told the detective that the scratches were from a use of force issue the day before. During that conversation, defendant told the detective that the victim had pictures of injuries that she claimed defendant had caused.

At trial, the victim's friends, sister, and counselor testified about statements the victim made during the last two months of her life about defendant physically abusing her and causing her to need surgery on her shoulder. In the month before she died, the victim had emptied a safe deposit box held jointly with defendant. Defendant asked about the box at the bank a few days after she did that, and he also complained to the city administrator about two weeks before the victim's death that she had betrayed him and had taken money. After her death, the police found about $9,600 in cash in the victim's home safe.

Within two days of the victim's death, Pfortmiller contacted the police about her former neighbor, Campbell. At the time, Pfortmiller was living in Portland, but she had been Campbell's neighbor and close friend for about 15 years, since Pfortmiller was 13 years old. She first met defendant, who was friends with Campbell, about 12 years before the victim's death. She testified that defendant would come over to Campbell's house "all the time" on his days off and when he was on duty. Pfortmiller testified...

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