State v. Weaver
| Decision Date | 06 March 2019 |
| Docket Number | A161899 |
| Citation | 439 P.3d 531,296 Or.App. 453 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Francis Paul WEAVER, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Neil F. Byl, 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.
Jennifer S. Lloyd, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
Defendant was convicted of murder, robbery, and other crimes. On appeal, he raises two assignments of error. Both relate to a plea agreement between the state and one of defendant’s co-conspirators, Orren, in which Orren committed to invoke his Fifth Amendment right against self-incrimination if called to testify at defendant’s trial. In his first assignment of error, defendant argues that the trial court erred in "permitting the state" to deprive defendant of his ability to call Orren as a fact witness. In his second assignment of error, defendant argues that the trial court erred in excluding Orren’s plea agreement from evidence. For the following reasons, we affirm.
Because of the posture of this appeal, we describe both the state’s and defendant’s versions of events, briefly, based on evidence presented at defendant’s trial.
According to the state’s theory of the case, defendant was the leader of a conspiracy that resulted in a murder. Defendant contacted the victim, who lived in Grants Pass, and asked him to drive to Portland to sell a large quantity of marijuana to defendant. On the night that the victim drove to Portland, defendant enlisted Orren (defendant’s neighbor and close friend), Endicott (Orren’s wife), Smith (defendant’s girlfriend), and Bettencourt (a friend) to conduct a "smash and grab." The preparation took at least six hours. During that time, defendant stole a handgun from a friend’s house and gave it to Orren. Defendant also procured a shotgun that Orren handled.
After several failed attempts to isolate the victim’s car in a favorable location, the crime came to fruition in the parking lot behind defendant’s and Orren’s apartment complex. Orren and Bettencourt approached the victim’s car. Bettencourt did not want to proceed when he realized that the victim was still in the car, but Orren said that he wanted to "go get this loot." Orren opened the driver’s door, shot the victim with the handgun, and fired again as the victim tried to drive away. (The victim, who was shot in the face and back, was later declared dead at the scene.) Orren and Bettencourt ran back to Orren’s apartment. Orren told Endicott that he had killed the victim. Defendant came in and asked, "What the fuck happened?" Bettencourt said that he did not know and to ask Orren. Defendant asked if they got the marijuana. When Bettencourt said no, defendant told Orren and Bettencourt to "[g]o get the package," and one of them swore at him. Defendant ran out of the apartment.
According to defendant, he and the victim together hatched a plan to steal marijuana from the victim’s supplier in Grants Pass. The victim would drive to Portland with the marijuana, and defendant would stage a break-in of the victim’s car. The victim was not supposed to be in the car. The victim would report the "theft" to his supplier, and then defendant and the victim would sell the marijuana and split the proceeds. Defendant had not told Orren about the victim being in on the plan. But the plan did not involve guns or violence. Defendant did not know that anyone had weapons. According to defendant, Orren shot the victim "for no apparent reason."
The state charged defendant, Orren, Bettencourt, and Endicott with multiple crimes. While defendant was awaiting trial, Orren, Bettencourt, and Endicott entered into plea agreements. Bettencourt and Endicott each pleaded guilty to one count of first-degree robbery with a firearm, and each was sentenced to 90 months. Orren pleaded guilty to aggravated murder and first-degree robbery with a firearm; the state agreed to recommend a prison sentence of 30 years to life and not to seek the death penalty, but sentencing was set over until completion of the prosecution of Orren’s co-defendants.
All three plea agreements addressed defendant’s trial. Bettencourt’s and Endicott’s plea agreements required them to testify truthfully at defendant’s trial. Orren’s plea agreement was different. It required Orren to assert his Fifth Amendment rights if called to testify at defendant’s trial and also barred him from cooperating with the defense. The stated reason for this provision was to "protect the [s]tate" from "untruthful and/or false testimony." According to the state, as represented to the trial court, Orren had admitted to shooting and killing the victim, but he expressly refused to "snitch" on anyone else. He therefore would not talk to the state about anyone else’s involvement.
The relevant part of Orren’s plea agreement—which the state now recognizes was "ill-advised"—provides:
In June 2015, the state filed a pretrial motion. At that time, defendant’s trial was scheduled to begin in November. The state expressed a belief that defendant might call Orren to the stand at trial "to assert the privilege in front of the jury" or, alternatively, might offer Orren’s plea agreement into evidence "to somehow insinuate that the State [was] keeping material information from [the defense]." The state pointed out that Orren remained in legal jeopardy, asserting, "In the case of a co-conspirator or accomplice, the right against self-incrimination endures until the witness has been convicted, sentenced, and exhausted all appeal rights." It cited State v. Barone , 329 Or. 210, 231-32, 986 P.2d 5 (1999), and State v. Abbott , 275 Or. 611, 616-17, 552 P.2d 238 (1976), in support of that assertion. The state then argued that having Orren invoke his Fifth Amendment rights in front of the jury would violate OEC 513, regarding witness claims of privilege, and that admitting the plea agreement would violate both OEC 402, regarding relevance, and OEC 513. The state asked that defendant "not be allowed to introduce the written plea agreement in [Orren’s case], make any reference to the agreement, or otherwise require Mr. Orren to invoke his right against self-incrimination in front of the jury."
The trial court held a hearing on the state’s motion in July 2015. The hearing began with Orren’s attorney objecting to Orren being called for any purpose. Orren’s attorney drew the court’s attention to a document, signed by Orren and recently filed with the court, in which Orren objected to being called as a witness "by any party in any civil or criminal matter" and stated that he would "refuse to answer all questions and invoke his right to remain silent" if called. The state pointed out that it had wanted Orren present at the hearing to invoke in person but that Orren’s attorney had insisted on a written invocation. Orren’s attorney argued that no one could call Orren for any reason because he was still in jeopardy, had previously invoked, and was continuing to invoke.
Defendant (who had not filed a written opposition to the state’s motion) argued next. First, he asserted that Orren could not invoke his Fifth Amendment rights because he was no longer in jeopardy or had waived those rights in his plea agreement. Defendant argued that point in detail, including that Orren was no longer in jeopardy under the jeopardy analysis in Barone . Second, defendant explained why he believed Orren’s plea agreement was relevant under OEC 402 and satisfied hearsay exceptions in OEC 803. As to relevance, defendant argued that the plea agreement made it reasonable for the jury to infer that Orren had "exculpatory evidence" that the state was trying to hide. Third, defendant asked the court to "look at the language in the plea agreement" in deciding the state’s motion and, because the state was "requiring Mr. Orren to be a roadblock to finding the truth," allow Orren’s plea agreement into evidence, regardless of whether defendant could call Orren to testify.
The state, which argued last, asserted that Orren’s plea agreement was irrelevant because Orren had not provided any information to the state. The state insisted that it was not withholding any exculpatory evidence from defendant. The state then reiterated the arguments in its written motion.
The trial court took the matter under...
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State v. Weaver
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