Oatney v. Premo, 275 Or. App. 185

Background

In 1996 a woman was murdered; petitioner (Oatney) later told prosecutors (Oct. 23, 1996) that Johnston had committed the killing alone and permitted police to verify his account; the district attorney (Upham) promised that "anything you say" and "any information that we derive" would not be used against petitioner.
Police played part of Oatney’s taped statement for Johnston the same day; Johnston immediately reacted and within days gave statements implicating both men, was charged, pleaded guilty, and testified against Oatney at trial.
At Oatney’s trial the state’s direct evidence of his participation was principally Johnston’s pretrial statements and live trial testimony; Oatney was convicted and sentenced to death.
In post-conviction proceedings Oatney argued trial counsel were ineffective for failing to move to suppress Johnston’s out-of-court statements and in-court testimony as derivative of Oatney’s immunized statement.
The post-conviction court denied relief, finding the state did not use evidence derived from the Oct. 23 statement and that counsel believed Johnston’s statements were not covered by the immunity agreement. The court of appeals reversed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Scope of Upham’s immunity promise	Oatney: promise covered the statement, any physical evidence, and any information discovered via follow-up (use and derivative-use immunity)	State: promise limited to direct use or narrow examples (e.g., physical items found); interpret agreement as contract with narrower scope	Held: Agreement unambiguously promised use and derivative-use immunity covering information from follow-up interviews including Johnston’s statements and testimony
Whether Johnston’s statements/testimony were "derived from" Oatney’s immunized statement	Oatney: Johnston only implicated Oatney after hearing the tape; later statements and trial testimony flowed from that disclosure	State: Johnston’s statements were independent or would inevitably have been discovered	Held: Johnston’s statements and testimony derived from Oatney’s statement; independent-source and inevitable-discovery doctrines did not apply here
Whether trial counsel were ineffective for not moving to suppress Johnston’s statements/testimony	Oatney: failure to seek suppression was unreasonable professional conduct given immunity agreement and that Johnston’s evidence was central to the state’s case	State: counsel reasonably believed Johnston’s evidence was not covered; even if deficient, admission would have been justified by inevitable discovery	Held: Counsel’s failure was unreasonable; no convincing basis shown that the evidence would inevitably have been discovered
Prejudice from counsel’s failure	Oatney: Johnston’s statements/testimony were the only direct evidence of participation; their suppression would have materially affected the trial outcome	State: no persuasive counterargument offered on appeal	Held: Prejudice established — exclusion of Johnston’s evidence would have tended to affect the verdict; relief warranted

Key Cases Cited

State v. Soriano, 298 Or 392 (1984) (discusses limits of use-and-derivative-use immunity and constitutional compulsion)
State v. Vondehn, 348 Or 462 (2010) (defines transactional immunity and distinguishes waiver/compulsion issues)
State v. Graf, 316 Or 544 (1993) (voluntary testimony does not automatically create transactional immunity; remedies for compelled testimony)
Kastigar v. United States, 406 U.S. 441 (1972) (government must prove derivative evidence is derived from independent, untainted source)
Strickland v. Washington, 466 U.S. 668 (1984) (standard for ineffective assistance of counsel)
Montez v. Czerniak, 355 Or 1 (2014) (state and federal standards for counsel performance are functionally equivalent)
State v. Beugli, 126 Or App 290 (1994) (contract principles applied to determine scope of immunity when no statutory transactional immunity exists)