State v. Weaver
| Decision Date | 03 September 2020 |
| Docket Number | CC CR1400331 (CA A161899) (SC S066636) |
| Citation | 472 P.3d 717,367 Or. 1 |
| Parties | STATE of Oregon, Respondent on Review, v. Francis Paul WEAVER, Petitioner on Review. |
| Court | Oregon Supreme Court |
Neil F. Byl, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the brief for petitioner on review. Also on the brief was Ernest G. Lannet, Chief Defender.
Jennifer S. Lloyd, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
While defendant was awaiting trial for murder, the state entered into a plea agreement with one of his codefendants, Michael Orren—a potential witness in defendant's case. The plea agreement required Orren, if called by defendant as a witness, to invoke his privilege against self-incrimination and not to testify on defendant's behalf. If Orren complied with the agreement, the state would seek a life sentence with the possibility of parole after 30 years. However, if Orren testified for defendant, even truthfully, the state could seek a death sentence or a sentence of life without parole—two sentencing options that were otherwise taken off the table by Orren's plea agreement. Defendant attempted to call Orren as a witness, and Orren invoked privilege. Defendant sought to at least place Orren's plea agreement before the jury, but the trial court ruled that he could not. The jury found defendant guilty of murder and other crimes, and the Court of Appeals affirmed. State v. Weaver , 296 Or. App. 453, 439 P.3d 531 (2019).
Before this court, defendant argues that the state's conduct interfered with his right to call witnesses under Article I, section 11, and the Sixth Amendment. The state has little to say in defense of its conduct in the trial court, but it contends that defendant failed to preserve this argument and made a showing insufficient to establish that his rights were violated. We conclude that defendant's Article I, section 11, right to compulsory process was violated.1 Defendant's convictions must be reversed.
In the early morning of February 16, 2014, Orren shot and killed the victim. An investigation linked Orren's actions to three other conspirators: defendant, Brittany Endicott, and Shannon Bettencourt. In brief, evidence suggested that defendant had lured the victim to Canby under the pretense of purchasing from the victim a large quantity of marijuana; that defendant had conspired with Orren, Bettencourt, and Endicott to rob the victim of the marijuana; and that Orren had killed the victim during the robbery. Orren was charged with aggravated murder, and the state intended to seek the death penalty. All four defendants were charged with murder, along with other offenses, including first-degree robbery. Defendant was charged with murder, two counts of first-degree robbery, conspiracy to commit first-degree robbery, second-degree robbery, conspiracy to commit second-degree robbery, and with being a felon in possession of a firearm.
For our purposes, the most important facts are procedural, so we focus on those. The evidence that was presented to the jury is ultimately relevant to our harmless error analysis, so we briefly describe the evidence at trial as well.
The cases of all four defendants were set for a joint trial. Defendant, Bettencourt, and Endicott all moved to sever the charges and to obtain trials separate from Orren. In a filing responding to that motion and addressing Sixth Amendment Confrontation Clause issues likely to arise in a joint trial (and not at issue here),2 the state outlined its theory of the case and described statements made by Orren in police interviews. The state attached the video or audio recordings of those interviews as exhibits. In most of those statements, Orren denied any involvement in the murder, but in the final interview he admitted to shooting the victim, although he maintained that he had done so in self-defense. In that interview, Orren stated that the plan was a "smash and grab": However, Orren declined to specifically implicate or further incriminate any of the codefendants. The state also included interviews with defendant, where he similarly admitted to a planned "smash and grab," in which defendant would lure the victim away from his car while Orren stole the marijuana from the vehicle.
The motion to sever was denied, but the joint trial was not to occur. First, Endicott and Bettencourt pleaded guilty to first-degree robbery. Their plea agreements contemplated the dismissal of the murder charges against them but required both of them to tell the truth if they were called to testify.
Shortly thereafter, Orren pleaded guilty to aggravated murder and first-degree robbery with a firearm. The agreement provided that the other charges against Orren would be dismissed. The plea agreement also specified that, if Orren complied with the agreement, he would receive a sentence of life with a minimum of 30 years without the possibility of parole—the lowest penalty authorized for aggravated murder. See 163.105(1) (2015). Under the agreement, the state agreed that Orren would not receive a sentence of death or of life without the possibility of parole.
The agreement contained the following additional provisions:
In effect, the plea agreement was a strict one. If Orren failed to comply with the agreement or took actions that the prosecution in good faith determined were noncompliant, then, under the terms of the agreement, Orren would face the possibility of a death sentence, or at least a presumptive sentence of life without parole. See ORS 163.150(2)(b) (2015) ().
The plea agreement then set forth the condition with which Orren was required to comply:
The plain text of that condition makes clear that it was not, in contrast to the Bettencourt and Endicott agreements, simply a prohibition on false testimony. Although the condition applied to cooperation with all three codefendants, Bettencourt and Endicott had already entered into plea agreements, leaving defendant as the only person affected. The plea agreement prohibited Orren from offering any testimony, including truthful testimony, on defendant's behalf. In addition, it prohibited Orren from "cooperat[ing] in any way" with defendant. The plea agreement contained the following text after that term:
"This agreement is meant to protect the State from Mr. Orren providing untruthful and/or false testimony to include untruthful and/or false testimony about the murder and robbery of [the victim] to include, but not limited to, the specific involvement and criminal culpability of the co-defendants."
The plea agreement was signed by Orren, his attorneys, and Amos and Morrow, the two deputy district attorneys responsible for prosecuting both Orren and defendant. Orren had not been sentenced by the time of defendant's trial, over a year after Orren entered his guilty plea.3
Having obtained guilty pleas from three of the four codefendants, the state moved ahead to try defendant for murder and other crimes. The state's theory was that, although the victim had been killed by Orren, defendant was the leader of the conspiracy. Before trial, the state filed a motion to prohibit defendant from calling Orren as a witness and to bar defendant from introducing into evidence or making reference to Orren's plea agreement at trial....
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