and submitted April 24, 2018
Clackamas County Circuit Court CR1400331; Michael C. Wetzel,
F. Byl, Deputy Public Defender, argued the cause for
appellant. Also on the briefs was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Offce of Public Defense
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
Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi,
was convicted of murder, robbery, and other crimes. On
appeal, he raises two assignments of error, both relating to
a plea agreement between the state and a co-defendant, in
which the co-defendant agreed to invoke his Fifth Amendment
right against self-incrimination if called to testify at
defendant's trial. First, defendant argues that the trial
court erred by "permitting the state" to deprive
defendant of his ability to call the co-defendant as a
witness at trial, in violation of his compulsory process
rights. Second, defendant argues that the trial court erred
in excluding the co-defendant's plea agreement from
evidence, based on OEC 513, regarding claims of privilege. In
response, the state recognizes that the co-defendant's
plea agreement was "ill-advised" but asserts that
the trial court did not commit reversible error.
Held: The first assignment of error, regarding an
alleged compulsory process violation, is unpreserved. As to
the second assignment of error, the trial court did not err
in its application of OEC 513, given the broad language of
that rule, the plea agreement's express [296 Or.App. 454]
reference to invocation of the Fifth Amendment, and
defendant's intent to use the plea agreement to argue for
an inference from the co-defendant's silence.
Or.App. 455] AOYAGI, J.
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.
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.
The Prosecution Theory
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.
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 [296 Or.App. 456] 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.
The Defense Theory
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
CHARGES AND PRETRIAL PROCEEDINGS
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
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 [296 Or.App. 457] 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
relevant part of Orren's plea agreement-which the state
now recognizes ...