State v. Weaver

439 P.3d 531, 296 Or. App. 453
CourtCourt of Appeals of Oregon
DecidedMarch 6, 2019
DocketA161899
StatusPublished
Cited by1 cases

This text of 439 P.3d 531 (State v. Weaver) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Weaver, 439 P.3d 531, 296 Or. App. 453 (Or. Ct. App. 2019).

Opinion

AOYAGI, J.

*455Defendant 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.

I. THE CRIMES

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.

A. The Prosecution Theory

According to the state's theory of the case, defendant was the leader of a conspiracy that resulted in a murder. Defendant contacted *533the 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 *456victim 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.

B. The Defense Theory

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."

II. THE CHARGES AND PRETRIAL PROCEEDINGS

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 *457Fifth 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:

"Part II: The defendant, Michael Orren, agrees to the following:
"A. To not testify or otherwise cooperate in any way on behalf of any of the codefendants, State v. Shannon Bettencourt , Clackamas County Circuit Court case CR1400330, State v. Francis Paul Weaver , Clackamas County Circuit Court case CR1400331, and State v. Brittany Christine Endicott , Clackamas County Circuit Court case 1400333. In regards to a trial, hearing, grand jury and any other proceedings involving any of the co-defendants, *534Mr. Orren agrees to assert his Fifth Amendment Right against self-incrimination and not to testify on behalf of any of the codefendants. 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.
"B. The failure to comply with any condition(s) of this agreement will result in a finding by the State of non-compliance with the terms and conditions of this agreement, and, accordingly, a request by the state to the trial judge and/or sentencing judge, to so find and to thereby deprive Mr. Orren of any and all benefits of this agreement."

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 *458pointed 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,

Related

State v. Weaver
472 P.3d 717 (Oregon Supreme Court, 2020)

Cite This Page — Counsel Stack

Bluebook (online)
439 P.3d 531, 296 Or. App. 453, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-weaver-orctapp-2019.