505 P.3d 975
Or. Ct. App.2022Background
- Defendant (former police sergeant Benton) was tried for two counts of aggravated murder, two counts of conspiracy, and one count of attempted murder related to his wife’s death; jury convicted on all counts (one attempted-murder verdict nonunanimous); trial court later merged counts and post-judgment dismissed Count 8 but did not enter a corrected judgment.
- The State’s trial case largely rested on testimony of a jailhouse informant, Layman, who had proffered to Clackamas County prosecutors in June, July, and July 30, 2015 and later entered a cooperation agreement; Campbell (initial grand-jury witness) did not testify at trial and her cooperation collapsed.
- Layman and prosecutors met for recorded proffers on June 16 and July 2, 2015; after the July 2 proffer prosecutors continued negotiations and Layman thereafter solicited additional incriminating statements from defendant while housed together.
- Defendant moved to suppress statements he made to Layman as obtained by a state agent (Article I, §11 / Sixth Amendment); trial court denied suppression and denied defendant’s requests for in camera review of a 2014 psychological evaluation of Layman (Guyton) claimed to contain Brady material.
- Trial court denied pretrial and midtrial motions to dismiss Counts 6–8 for alleged variance between grand-jury allegations and trial proof (insulin overdose alleged to grand jury vs. Fentanyl overdose evidence at trial); after conviction the court granted defendant’s new-trial motion as to Count 8 only and dismissed it.
- Court of Appeals: held the variance claims for Counts 6–7 were not prejudicial or material and that the trial court did not err on those points; held Layman became a state agent by July 2, 2015 so statements after that date must be suppressed, reversal and remand of Counts 1, 2, 6, and 7; affirmed denial of in camera review because defendant failed to make the required threshold showing of Brady material.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Benton) | Held |
|---|---|---|---|
| Variance between indictment and trial proof on Counts 6–8 (dates/theory; insulin vs Fentanyl) | No material variance: date is not an element of conspiracy; State tried the same factual theory (ongoing conspiracy) presented to grand jury; any date-tension harmless | Change in theory (insulin insulin attempt to Fentanyl overdose; dates) amended the grand-jury indictment and prejudiced defense preparation | No error as to Counts 6–7 (variance not material or prejudicial); Count 8 later dismissed by trial court and reversed to allow corrected judgment entry (no remand) |
| Whether Layman was a state agent so statements to him after a certain date must be suppressed (Article I, §11 and Sixth Amendment) | State never directed Layman to elicit statements; investigators merely received proffers and warned Layman not to ask questions; no sufficient government initiation/control to convert Layman into an agent | After June–July proffers prosecutors affirmatively encouraged and negotiated with Layman for benefits; by July 2, 2015 prosecutors’ objective conduct created incentive and assent such that Layman acted at the state’s behest | Layman became a state agent by July 2, 2015; statements obtained after that date must be suppressed under Article I, §11; the suppression error was not harmless — reverse and remand Counts 1, 2, 6, 7; Count 8 reversed for entry of corrected judgment |
| In camera review / Brady request for Guyton (2014 psych eval) records | Guyton records not in State control; no showing records would contain material impeachment or Brady evidence; trial court should decline review | Guyton evaluation might show dangerous-offender risk or mental-condition evidence that would materially impeach Layman’s credibility / motive to fabricate; court must perform in camera review | Trial court did not err: defendant failed the required threshold showing that Guyton records were likely to contain material favorable/impeaching evidence; no in camera review required |
Key Cases Cited
- State v. Wimber, 315 Or 103 (1992) (three-step analysis for whether charging instrument amended without grand-jury presentation)
- State v. Long, 320 Or 361 (1994) (variance-of-proof test: materiality and prejudice; state must show same factual theory used at grand jury and trial)
- State v. Smith, 310 Or 1 (1990) (Article I, §11 jailhouse-informant rule: exclude statements when police sufficiently involved in informant’s elicitation)
- State v. Lowry, 37 Or App 641 (1979) (informant case establishing significance of official encouragement/assistance in suppressing post-attachment statements)
- State v. Sines, 359 Or 41 (2016) (use of objective manifestations/common-law agency principles to decide when private actors’ conduct is state action)
- Pennsylvania v. Ritchie, 480 U.S. 39 (1987) (due-process/Brady framework may require in camera review of privileged third-party records)
- Henry v. United States, 447 U.S. 264 (1980) (Sixth Amendment: government cannot deliberately elicit statements by circumventing right to counsel)
- State v. Flores Ramos, 367 Or 292 (2020) (Ramos error and jury unanimity requirement for aggravated murder)