Oregon Supreme Court, September 3, 2020
Summarized by Rankin Johnson, OCDLA
WITNESSES - Witness tampering
Plea agreement with co-defendant, under which co-defendant agreed to assert Fifth Amendment privilege if called by defendant, violated right to compulsory process. Reversed and remanded.
Defendant, along with three others, was accused of a joint robbery and murder. One of the co-defendants shot and killed the victim and thereafter, pursuant to a plea agreement, pleaded guilty to aggravated murder.
The agreement provided both that the co-defendant would assert a privilege and that he would not testify on behalf of the defendant. The agreement further provided that the prosecutor had the power to decide whether the agreement had been breached, and, upon finding it was, to seek to vacate Orren's 30-year sentence and seek a death sentence.
The trial court ruled that the co-defendant could not be called to testify and the defendant could not offer evidence of the plea agreement. The Supreme Court ultimately held that the prosecutor could not use a plea bargain to prevent a witness from testifying truthfully, and that OEC 513 did not exclude evidence of such a plea bargain.
The Supreme Court discussed the procedure in the trial court and the defendant's arguments and requests in part of it discussion of preservation.
In holding that the defendant's Oregon right to compulsory process had been violated, the court held that defendant did not need to show that the witness would have testified in the absence of contrary pressure from the state, or that the resulting testimony would have been favorable. The court observed that the plea agreement here would prevent the witness from cooperating with any pretrial investigation or inquiry by the defendant, frustrating an attempt to carry any such burden.
The court held that, under the facts of the case, the error was harmful. The court left it to the trial court to determine how to proceed on remand.
State v. Weaver 367 Or 1 (September 3, 2020) (Balmer) (Clackamas County, Wetzel)