State v. Oatney

• Decision Date: 21 April 2022
• Docket Number: CC 18CR70058 (SC S068761)
• Citation: 369 Or. 555,508 P.3d 482
• Parties: STATE of Oregon, Appellant, v. Billy Lee OATNEY, Jr., Respondent.
• Court: Oregon Supreme Court

369 Or. 555

508 P.3d 482

STATE of Oregon, Appellant,

v.Billy Lee OATNEY, Jr., Respondent.

CC 18CR70058 (SC S068761)

Supreme Court of Oregon.

Argued and submitted January 13, 2022.

April 21, 2022

Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause and filed the briefs for appellant. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Richard L. Wolf, Richard L. Wolf PC, Portland, argued the cause and filed the briefs for respondent.

Before Walters, Chief Justice, and Balmer, Flynn, Nelson, and Garrett, Justices, and Linder and Landau, Senior Judges, Justices pro tempore.^**

BALMER, J.

Defendant was convicted of aggravated murder and sentenced to death. 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) ( Oatney I ). During its initial investigation of the murder, the state gave defendant contractual use and derivative use immunity in exchange for providing information about the circumstances of the murder. The state then shared part of defendant's immunized statement with an associate, Johnston. As a result, Johnston provided the state with additional information about the murder, pleaded guilty to the crime, and testified against defendant in his first trial for aggravated murder. Following defendant's conviction and sentencing, and this court's affirmance of the judgment of conviction and sentence in Oatney I , he obtained post-conviction relief on the ground that his trial counsel had been inadequate for failing to move to suppress Johnston's statements and testimony, which had derived from defendant's immunized statement. The post-conviction court remanded the case for further proceedings.

The state initiated retrial proceedings against defendant, and the state now appeals a pretrial order. Among other things, that order precludes the state in defendant's retrial from calling "Johnston to present testimony that violates the immunity agreement of Defendant," even if, "[w]ithin the limits of the law and the evidence presented," defense counsel represents in opening statements that the evidence will show that Johnston or someone other than defendant committed the crime or argues in closing that the state has not proved beyond a reasonable doubt that defendant committed the crime. Defendant raises a cross-assignment of error, arguing that, if we reverse on direct appeal, we should also conclude that the trial court erred in ruling that defendant would open the door to Johnston's testimony by presenting evidence of Johnston's judgment of conviction. For the reasons that follow, we conclude that the trial court did not err in precluding the state from calling Johnston under the circumstances described in the order and, for that reason, do not address defendant's cross-assignment. Accordingly, we affirm.

I. BACKGROUND

We take the historical facts from this court's decision on direct review, Oatney I , 335 Or. 276, 66 P.3d 475, and the Court of Appeals’ post-conviction decisions, Oatney v. Premo , 275 Or. App. 185, 369 P.3d 387 (2015), rev. den. , 359 Or. 847, 383 P.3d 850 (2016) ( Oatney II ), and Oatney v. Kelly , 288 Or. App. 550, 407 P.3d 958 (2017), rev. den. , 362 Or. 508, 424 P.3d 723 (2018) ( Oatney III ).

The victim was murdered in 1996. Defendant was ultimately charged with multiple counts of aggravated murder, and Johnston was charged with one count of aggravated murder. Johnston pleaded guilty, and, in exchange for his cooperation and testimony, the state agreed that it would not seek the death penalty in his case. At defendant's original trial, Johnston and defendant both testified. According to Johnston, he and defendant had together murdered the victim in defendant's apartment. Oatney I , 335 Or. at 280, 66 P.3d 475. According to defendant, Johnston alone had murdered the victim while defendant was away from the apartment, and defendant helped Johnston cover up the crime out of fear of being implicated in a murder that had occurred in his apartment. Id. A jury convicted defendant and sentenced him to death. Thereafter, the court sentenced Johnston to life in prison without the possibility of parole. On direct review, this court affirmed defendant's convictions and sentence of death. Id. at 278, 66 P.3d 475.

Defendant sought post-conviction relief, contending that his trial counsel had been inadequate and ineffective "by failing to seek suppression of statements and testimony derived from a statement that [defendant] made about the murder in exchange for a promise of immunity from the district attorney."¹ Oatney II , 275 Or. App. at 187, 369 P.3d 387. The post-conviction court denied relief, and defendant appealed.

The Court of Appeals recounted the circumstances that gave rise to defendant's immunized statement. Defendant's attorney had arranged for defendant "to disclose what he knew to police and the district attorney on October 23, 1996, in exchange for a promise that his statement and derivative evidence would not be used against him." Id. at 197, 369 P.3d 387. Before making the statement, the district attorney promised defendant that " ‘anything you say during the course of this interview’ and ‘any information that we derive from what you tell us’ ‘cannot ever be used against you.’ " Id. The district attorney "reconfirmed his original promise" at the end of the interview. Id. at 213, 369 P.3d 387.

In that immunized statement, defendant indicated that "Johnston had murdered the victim" and had "stolen several items from her apartment." Id. at 197, 369 P.3d 387. Defendant also told the prosecutor that, the day after the murder, he had "helped Johnston dispose of the victim's clothing" along with the items stolen from her apartment. Id. After defendant had made the "bulk of the statement," the detectives who were present requested defendant's "permission to play" a recording of it for Johnston, and defendant agreed. Id. at 197-98, 369 P.3d 387.

"Until that point, despite repeated attempts by the police to get information about the murder from Johnston, Johnston had refused to speak to the police about the murder ***." Id. at 198, 369 P.3d 387. "Immediately after the detectives played part of [defendant's] statement—in which, as noted above, [defendant] said that Johnston had committed the murder alone—Johnston's face turned beet red, and he clenched and shook his fists. He then immediately asserted that [defendant] had committed the crime." Id. During subsequent interviews, Johnston eventually asserted that "he and [defendant] had committed the crime together," and, at defendant's trial, Johnston gave similar testimony. Id.

Against that factual backdrop, the Court of Appeals concluded that defendant, who had voluntarily waived his right against self-incrimination, was entitled to use and derivative use immunity, which was governed by contract principles.² Id. at 203-04, 203 n. 1, 369 P.3d 387. Applying those principles, the court concluded that

"the immunity agreement unambiguously provided that, in exchange for [defendant's] information about the murder, the district attorney would not use against [defendant] (1) [defendant's] statement itself, (2) any physical evidence discovered as a result of [defendant's] statement, or (3) information discovered as a result of follow-up interviews, including the interview of Johnston."

Id. at 209, 369 P.3d 387.

In determining whether Johnston's statements derived from defendant's immunized statement, the Court of Appeals essentially analogized defendant's contractual immunity to the use and derivative use immunity described in the United States Supreme Court's decision in Kastigar v. United States , 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972). Oatney II , 275 Or. App. at 209-10, 217, 369 P.3d 387 ; see also Aiken v. United States , 956 A.2d 33, 46 (D.C. 2008) ( Aiken I ) ("[T]he requirements of Kastigar have been applied to information given by defendants to government agents in exchange for informal (i.e. , non-statutory) promises of immunity."). In Kastigar , the Court held that, in the context of a federal statutory grant of immunity, "immunity from use and derivative use is coextensive with the scope of the [Fifth Amendment] privilege against self-incrimination[.]" 406 U.S. at 453, 92 S.Ct. 1653. The Court further held that, in a subsequent prosecution of an individual who has been granted use and derivative use immunity, the burden of proof on the prosecution "is not limited to a negation of taint," but rather "imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony." Id. at 460, 92 S Ct 1653.

Consistently with the state's acknowledgement before the post-conviction court, the Court of Appeals reasoned that, had defendant's trial counsel sought before the trial court to exclude Johnston's statements as derivative of defendant's immunized statement, "the state would have had the burden of showing that Johnston's statements and testimony were ‘derived from a legitimate source wholly independent of’ [defendant's] immunized statement." Oatney II , 275 Or. App. at 217, 369 P.3d 387 (quoting Kastigar , 406 U.S. at 460, 92 S.Ct. 1653 ). The Court of Appeals further reasoned that "the undisputed evidence is that Johnston made his October 23 statement to the police because of [defendant's] statement"—that is, defendant's statement "caused Johnston to implicate [defendant]" and "to confess his own participation." Id. at 218-19, 369 P.3d 387. Thus, that court concluded that defendant had proved in the post-conviction proceeding that "Johnston's statements and testimony derived from [defendant's] statement, not from any independent source." Id. at 219, 369 P.3d 387. Because defendant's "trial counsel [had] failed to exercise reasonable professional skill and judgment in failing to seek suppression of Johnston's...