State v. Benton

371 Or. 311

534 P.3d 724

STATE of Oregon, Petitioner on Review,

v.Lynn Edward BENTON, Respondent on Review.

CC CR1201792 (SC S069454)

Supreme Court of Oregon.

Argued and submitted December 1, 2022.

August 10, 2023

Christopher A. Perdue, Assistant Attorney General, Salem, argued the cause and filed the briefs for respondent on review. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

David Sherbo-Huggins, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the brief for petitioner on review. Also on the brief was Ernest G. Lannet, Chief Deputy Defender.

Jessica A. Schuh, Schwabe, Williamson & Wyatt, P.C., Portland, filed the brief for amici curiae Criminal Justice Reform Clinic and Forensic Justice Project. Also on the brief were Aliza B. Kaplan, Lewis and Clark Law School Criminal Justice Reform Clinic, Portland, and Janis C. Puracal, Forensic Justice Project, Portland.

Before Flynn, Chief Justice, and Duncan, Garrett, and Bushong, Justices, and Balmer and Walters, Senior Judges, Justices pro tempore.^**

BALMER, S. J.

This case requires us to consider when a private citizen becomes a state agent for purposes of Article I, section 11, of the Oregon Constitution. While being held pending trial for aggravated murder, defendant lived in the same unit as another adult in custody, Layman. Layman hoped to be an informant for the state and to pass on information about defendant in exchange for a benefit in his own cases. Layman spoke with defendant about his case and learned incriminating information. Layman had a series of proffer meetings with the state, and he ultimately signed a cooperation agreement to testify against defendant. Before trial, defendant moved to suppress Layman's testimony. Defendant argued that Layman had acted as a state agent in questioning defendant, thereby violating defendant's right to counsel. The trial court denied defendant's motion to suppress, citing insufficient evidence that Layman had acted as a state agent. Layman testified against defendant at trial, and the jury convicted defendant of aggravated murder and other crimes.

The Court of Appeals reversed, holding that Layman had been acting as a state agent by the end of his second proffer meeting because, by that point, the state's involvement in Layman's questioning of defendant was sufficient to bring into effect the constitutional protections of Article I, section 11. State v. Benton , 317 Or App 384, 429, 505 P.3d 975 (2022). For the reasons set out below, we agree: Defendant's admissions to Layman made after that second proffer meeting should have been excluded. The Court of Appeals decision is affirmed, and defendant's convictions on Counts 1, 2, 6, and 7 are reversed and remanded for a new trial.

FACTS

"We take the relevant facts from the record and the Court of Appeals opinion, setting them out consistently with the trial court's explicit and implicit findings. We review the trial court's denial of defendant's motion to suppress for errors of law." State v. Sines , 359 Or. 41, 44, 379 P.3d 502 (2016) (citation omitted).

Defendant was indicted by a Clackamas County grand jury for aggravated murder, attempted murder, solicitation, and conspiracy, based on evidence that he and two other people, Campbell and Jaynes, had killed defendant's wife, Debbie Lee Benton. Defendant was arrested and jailed in Multnomah County pending trial. From April to July 2015, another adult in custody, Layman, was housed in the same unit as defendant. Layman had pending cases in both Clackamas and Multnomah Counties. Layman and defendant worked together in the jail and were housed in adjacent cells where they could talk. Layman and defendant began to discuss defendant's case. Eventually, Layman learned from a deputy that defendant had been indicted for killing his wife.

In June 2015, Layman asked his attorney to tell the Clackamas County District Attorney that Layman had heard defendant make some incriminating statements. Layman hoped to benefit in his pending cases by sharing information about defendant with the state. In June and July 2015, Layman made three proffers of information gathered from conversations with defendant.

During Layman's first proffer meeting, on June 16, 2015, Layman and his attorneys met with two prosecutors, an investigator, and a detective. Layman signed a proffer agreement and read notes that he had taken about his conversations with defendant. The investigator, Schmautz, asked Layman some follow-up questions, including whether Layman had looked at any of defendant's discovery and whether defendant had said how his coconspirators had been involved. Near the end of the first meeting, Layman and Schmautz had the following exchange in which Schmautz admonished Layman that the state was not directing him to speak with defendant:

"[Schmautz]: So, [Layman], just so you're clear, we do not want—we're not directing you or telling you to have any conversations with [defendant]. He's represented by attorneys, and we don't want you to think—

"[Layman]: Right.

"[Schmautz]: —the fact that you're talking to us that we would in any way direct you, or tell you to have any conversations with him.

"[Layman]: All right."

No agreement was made between Layman and the state concerning any benefit to Layman at that time. Schmautz stated that Layman could reach out if he thought that he had any other helpful information. None of the prosecutors or police directed Layman to stop discussing defendant's case with defendant.

Layman continued his conversations with defendant after that meeting. Layman did not just passively listen, but sometimes prompted defendant to talk about his case. Layman learned more about the case, including about defendant's trial strategy, the details of the murder, and the roles of defendant's coconspirators, Campbell and Jaynes.

Layman met with the prosecutors a second time, on July 2, 2015, to discuss the possibility of a cooperation agreement regarding the information Layman had already offered. When the parties could not agree, Layman offered additional information and answered more questions from Schmautz. Schmautz's questions focused on specific facts, including when defendant had gotten a call from one of his coconspirators, how defendant had harmed the victim, and what Campbell and Jaynes had done. Layman did not have answers to those questions. Schmautz reiterated to Layman that the state was not directing him to have any communications with defendant. The July 2 proffer meeting is discussed in further detail below.

Layman contacted the district attorney again, indicating that he had more information, and a third meeting took place on July 30, 2015. Layman reported to the prosecutors that he had been able to ask defendant specific questions about the crime, and Layman related to them additional incriminating statements that defendant had made, including his motive for the crime and details about the murder weapon.

Following that meeting, extended negotiations took place between Layman and the state. Layman ultimately entered into a cooperation agreement with the district attorney on January 16, 2016, whereby Layman agreed to testify against defendant in exchange for favorable sentencing recommendations from the district attorney in his pending Multnomah County case.

Before trial, defendant moved to exclude Layman's testimony regarding defendant's statements, as well as any derivative evidence. Defendant argued that Layman had acted as the state's agent in questioning defendant without counsel, in violation of Article I, section 11, of the Oregon Constitution.¹ The trial court denied defendant's motion because it found that there was insufficient evidence to conclude that Layman had been acting as the state's agent.

At defendant's trial, Layman testified against defendant pursuant to his cooperation agreement with the state. Layman testified to various incriminating statements made by defendant involving his solicitation of Campbell and Jaynes to murder his wife, details of the plan the three conspirators had formed, defendant's motive for wanting the victim dead, and defendant's participation in the murder. Due in part to noncooperation by other witnesses (including Campbell, whom the state had hoped would testify), the state's case at trial was based largely on Layman's testimony.

The jury found defendant guilty of two counts of aggravated murder and two counts of conspiracy, which merged into a single conviction of aggravated murder. The jury also found defendant guilty of attempted murder by a nonunanimous verdict, but that count was dismissed on defendant's post-judgment motion.

Defendant appealed, arguing that the trial court had erred in denying his motion to suppress Layman's testimony, among other errors. Defendant contended that Layman had been acting as a state agent in questioning defendant. Defendant proposed four different dates when Layman could be deemed to have become a state agent, which were the date of Layman's first conversation with defendant, the date of Layman's first proffer meeting, the date of Layman's second proffer meeting, and another later date. Defendant identified certain facts relevant to each of the proposed dates. As to the first date, for example, defendant noted that Layman had been actively working as an informant on a different matter when he first met defendant. As to the later dates, defendant argued that the state had encouraged Layman's conduct by having several high-ranking members of the prosecution team meet with Layman; the prosecution team had implied through specific questioning the topics that were of interest to them; and the team had indicated an openness to receiving additional information regarding defendant from Layman.

The state responded that Layman was not an agent of the state when he was questioning defendant. The state emphasized that state officials had warned Layman that the state...