State v. Benton

384

Argued and submitted December 20, 2019; conviction on Count 8 reversed,

conviction on Counts 1, 2, 6, and 7 reversed and remanded, otherwise affirmed

February 9, 2022

STATE OF OREGON,

Plaintiff-Respondent,

v.

LYNN EDWARD BENTON,

Defendant-Appellant.

Clackamas County Circuit Court

CR1201792; A164057

505 P3d 975

Defendant appeals from a judgment of conviction for aggravated murder

and attempted murder, raising 31 assignments of error. The Court of Appeals

addressed three categories of claimed error and did not reach defendant’s

remaining assignments of error. Those three categories are (1) defendant’s

assignments of error to the trial court’s denials of defendant’s demurrers,

motions to dismiss, and motions for judgment of acquittal based on an alleged

variance in proof between the indictment and the evidence presented at trial,

(2) defendant’s assignments of error to the trial court’s denial of his motion to

suppress statements defendant made to a jailhouse informant on the ground that

the informant was a state agent, and (3) defendant’s assignment of error to the

trial court’s refusal to conduct an in camera review of the records of Dr. Guyton,

who was hired by the attorney for the jailhouse informant to perform a psycholog-

ical evaluation of him. Held: (1) The trial court did not err in denying defendant’s

demurrers, motions to dismiss, and motions for judgment of acquittal, because

the alleged variances in proof were neither material nor prejudicial. (2) The jail-

house informant was acting as a state agent after July 2, 2015, triggering the

state constitutional protections of the exclusionary rule. The trial court erred

when it denied defendant’s motion to suppress statements made by defendant

to the informant after that date, requiring reversal and remand of defendant’s

convictions. (3) The trial court did not err in refusing to conduct an in camera

review of Guyton’s records, because defendant did not make a sufficient thresh-

old showing for such a review. (4) Additionally, the attempted murder conviction

was reversed for the trial court to enter a judgment reflecting its post-judgment

dismissal of that count.

Conviction on Count 8 reversed; conviction on Counts 1, 2, 6, and 7 reversed

and remanded; otherwise affirmed.

Kathie F. Steele, Judge.

David Sherbo-Huggins, Deputy Public Defender, argued

the cause for appellant. Also on the briefs was Ernest G.

Lannet, Chief Defender, Criminal Appellate Section, Office

of Public Defense Services.

Cite as 317 Or App 384 (2022) 385

Michael A. Casper, Assistant Attorney General, and

Christopher A. Perdue, Assistant Attorney General, argued

the cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before Ortega, Presiding Judge, and Shorr, Judge, and

Powers, Judge.

ORTEGA, P. J.

Conviction on Count 8 reversed; conviction on Counts 1,

2, 6, and 7 reversed and remanded; otherwise affirmed.

386 State v. Benton

ORTEGA, P. J.

Defendant appeals from a judgment of convic-

tion for aggravated murder and attempted murder. A jury

found defendant guilty of two counts of aggravated murder

(Counts 1 and 2), two counts of conspiracy (Counts 6 and

7), and one count of attempted murder (Count 8), and the

trial court merged the guilty verdicts on Counts 2, 6, and

7 into the guilty verdict on Count 1, for a single conviction

of aggravated murder.1 Defendant asserts 31 assignments

of error on appeal.2 In this opinion, we address only defen-

dant’s assignments of error 6 through 17, and, based on our

disposition of those assignments, we need not reach defen-

dant’s remaining assignments of error.

In assignments of error 11 through 17, defendant

challenges the trial court’s denials of defendant’s demur-

rers, motions to dismiss, and motions for judgment of

acquittal based on an alleged variance in proof between the

indictment and the evidence presented at trial for Counts 6

through 8. Although, as explained below, we reverse Count 8

because the trial court ultimately dismissed that count

based on defendant’s post-judgment motion, we consider

defendant’s assignments with respect to Count 8, as well

as with respect to Counts 6 and 7, because he argues that

the trial court’s failure to dismiss Count 8 earlier in the

1

The trial court granted defendant’s motions for judgment of acquittal on

three counts of solicitation (Counts 3, 4, and 5). We “otherwise affirm” those

acquittals in our disposition of this case.

2

In supplemental briefing, defendant also brings challenges under Ramos

v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020), which we

reject with respect to Counts 6 and 7 and which we do not reach with respect to

Count 8.

Here, the trial court instructed the jury that it could find defendant guilty of

aggravated murder only by a unanimous verdict (Counts 1 and 2). The court also

instructed the jury that it could find defendant guilty of the remaining counts

(Counts 6, 7, and 8) by a nonunanimous vote of 10 jurors, which was error under

Ramos. The jury’s guilty verdict on Count 8, attempted murder, was nonunan-

imous. As a result, ordinarily we would reverse and remand Count 8. State

v. Flores Ramos, 367 Or 292, 297, 478 P3d 515 (2020). However, as discussed

below, because the trial court granted defendant’s post-judgment motion to dis-

miss Count 8, but did not enter a corrected judgment dismissing that count, we

instead reverse Count 8, without remand, on that basis. The jury returned a

unanimous verdict on both Counts 6 and 7. Thus, we conclude that any error in

giving a nonunanimous jury instruction on Counts 6 and 7 was harmless as to

those counts. Id. at 333-34.

Cite as 317 Or App 384 (2022) 387

proceedings prejudiced his trial. We conclude that the trial

court did not err.

In assignments of error 7 through 10, defendant

challenges the trial court’s denial of his motion to suppress

statements defendant made to a jailhouse informant on the

ground that the informant was a state agent. We conclude

that the jailhouse informant was acting as a state agent

after July 2, 2015, triggering the state constitutional pro-

tections of the exclusionary rule. Thus, the trial court erred

when it denied defendant’s motion to suppress statements

made by defendant to the informant after that date. We also

conclude that that error was not harmless and reverse and

remand Counts 1, 2, 6, and 7 on that basis. We also reverse

Count 8, but without a remand. The trial court granted

defendant’s post-judgment motion and dismissed Count 8,

which ruling is not challenged on appeal; however, the trial

court did not enter a corrected judgment dismissing Count 8.

Thus, we reverse defendant’s conviction on Count 8 for the

trial court to enter a judgment reflecting its dismissal of

that count.

Finally, we also address defendant’s sixth assign-

ment of error, because it raises an issue of law that will

likely arise on remand and we determine that it is appro-

priate to address the merits of that issue in this opinion.

In that assignment, defendant argues that the trial court

erred when it refused to conduct an in camera review of the

records of Dr. Guyton, who was hired by the attorney for the

jailhouse informant to perform a psychological evaluation

of him in 2014. We conclude that the trial court did not err

in refusing to conduct an in camera review, because defen-

dant did not make a sufficient threshold showing that those

records contain Brady material.

I. BACKGROUND FACTS

Because of the complexity of this case and the var-

ied assignments of error that we address, we discuss many

facts, both historical and procedural, only in the sections

pertaining to specific assignments of error. The following

recites only the most pertinent trial testimony to provide

context for the more specific discussions in our analysis.

388 State v. Benton

Defendant was a police sergeant in Gladstone, which

is located in Clackamas County. On the evening of May 28,

2011, defendant, Hopperstad, and Scholz found the victim,

defendant’s estranged wife, dead inside the beauty salon that

she owned, which was located across the street and down

the block from the police station. Defendant was on duty

when Hopperstad retrieved him to open the salon because

the victim was not responding to Scholz’s knocks on the

door. Defendant opened the salon door with a key, entered

using his flashlight, and found the victim in the back-office

area of the salon. Defendant reacted by screaming, sobbing,

and falling to his knees, but he did not fully enter the back

room. He appeared to check the victim’s pulse; Hopperstad

asked if they should call for emergency medical assistance,

and defendant said no. Defendant, who at one time was a

paramedic, did not attempt any first aid on the victim, and

Hopperstad, also a trained first responder, deferred to defen-

dant’s assessment because defendant had more experience.

Hopperstad asked defendant if he should call someone over;

defendant said no and then radioed for assistance.

A sergeant responded to the scene and called the

medical examiner. An investigator for the medical exam-

iner conducted an initial examination of the victim and, due

to her lack of experience, made a preliminary assessment

at the scene that the victim died of natural causes. After a

more senior investigator examined the body and saw rea-

sons to question that assessment, the investigation shifted,

and the medical examiner conducted an autopsy. The exam-

iner found that, externally, the victim’s left eye was black

and she had cuts on her lips, an abrasion on her chin, a left

scalp hemorrhage, bruises on her arms and left thigh, and

indications of blunt force trauma. Internally, the victim had

broken ribs and a lacerated liver, and she had been shot in

the back, with the .25 caliber bullet still lodged in her spinal

cord. She also had injuries to the structures in her neck. The

examiner determined that the cause of death was “gunshot

wound to the back, neck compression/strangulation, and

blunt force chest and abdominal trauma.”

Just after midnight on the day that the victim died,

believing that the victim had died of natural causes, the

police detective interviewed defendant. Defendant reported

Cite as 317 Or App 384 (2022) 389

that he and the victim had started dating in about 2008,

registered a domestic partnership in 2009, and married

in October 2010. In 2010, defendant, who is a trans man,

had begun to transition, which included hormone therapy;

he explained that, as he became more masculine, the vic-

tim had problems with it. Around April 1, 2011, about two

months before the victim died, they had a huge fight, and

defendant moved out of the couples’ home and in with his

sister. He said that he had not seen or spoken with the vic-

tim for about two weeks before her death.

When asked about physical altercations, defen-

dant reported that one time he lost his temper and “kind of

pinned [the victim] into a corner just with my arm and made

her listen to me.” He stated that he had also learned from

the victim’s mother that the victim claimed that he “had

gotten physical with her” and that he was concerned about

that when he left in April; the victim was claiming that he

had caused a bruise on her arm and he was nervous about

how that could affect his career. On being asked, defendant

reported that the victim was taking several medications,

including Celexa, Flexeril, Oxycodone for pain, and that

“I learned that she just got put on some Fentanyl patches”

for pain in her shoulder. The detective also seized two cell-

phones that defendant had on him during the interview.

Defendant at first only gave the detective his work phone,

but the other phone rang during the interview. Defendant

said that he had forgotten about that phone and did not use

it much, but also said he did use it since he and the victim

had split up, and handed it over. The police later determined

that defendant used the phone often, including to talk to his

friend, Campbell. Defendant had also received a call earlier

that day in front of two detectives that made him “very agi-

tated and frustrated.” The police determined that that call

likely came from Campbell’s phone.

Later, the same detective who interviewed defen-

dant met him and his sister at his sister’s house. There, the

detective asked defendant about scratches and red marks

on his arm. In response, defendant went pale, hesitated,

and then told the detective that the scratches were from a

use of force issue the day before. During that conversation,

390 State v. Benton

defendant told the detective that the victim had pictures of

injuries that she claimed defendant had caused.

At trial, the victim’s friends, sister, and counselor

testified about statements the victim made during the last

two months of her life about defendant physically abusing

her and causing her to need surgery on her shoulder. In the

month before she died, the victim had emptied a safe deposit

box held jointly with defendant. Defendant asked about

the box at the bank a few days after she did that, and he

also complained to the city administrator about two weeks

before the victim’s death that she had betrayed him and had

taken money. After her death, the police found about $9,600

in cash in the victim’s home safe.

Within two days of the victim’s death, Pfortmiller

contacted the police about her former neighbor, Campbell.

At the time, Pfortmiller was living in Portland, but she had

been Campbell’s neighbor and close friend for about 15 years,

since Pfortmiller was 13 years old. She first met defendant,

who was friends with Campbell, about 12 years before the

victim’s death. She testified that defendant would come over

to Campbell’s house “all the time” on his days off and when

he was on duty. Pfortmiller testified that Campbell is “very

unhealthy and destructive to herself and the people around

her” and is a drug addict, using opiate pain pills when she

first knew her, but later methamphetamine and, around the

time of the victim’s death, also Fentanyl. Pfortmiller con-

tacted the police after the victim’s death because she “knew

that [Campbell] had something to do with her death” after

she spoke to Campbell the night the victim died. Pfortmiller

also thought Campbell was involved because, before that

call, Campbell had talked about harming the victim.

Pfortmiller did not take those statements seriously at the

time, because Campbell had talked about harming a lot of

people. Pfortmiller cooperated with the police to record con-

versations with Campbell. Based on Campbell’s incriminat-

ing statements to Pfortmiller, the police obtained a search

warrant and found a .25 caliber gun and magazine in paint

cans in the garage of Campbell’s neighbor.

On June 1, 2011, before execution of the search war-

rant, police observed Campbell and her husband meet with

Cite as 317 Or App 384 (2022) 391

defendant and his sister in the parking lot of a restaurant.

Defendant and Campbell got out of their respective cars

and had an “intense” conversation. Defendant then handed

Campbell a checkbook—defendant managed Campbell’s

finances in some unspecified respect—and broke off to

speak with Campbell’s husband, while Campbell spoke with

defendant’s sister. Campbell asked defendant’s sister, “You

didn’t tell anyone about what I said, did you?” Later that

day, the police arrested Campbell and her husband, because

the police believed that they were about to dispose of evi-

dence. Campbell was later indicted on a charge of aggra-

vated murder.

Five months later, in November 2011, defendant’s

sister reported to the police various statements that

Campbell had made to her before the victim’s death, start-

ing in about September 2010. She testified that Campbell

claimed to have tried to slip the victim drugs, that she had

killed before, that her friend Tommy was helping her make

a silencer, and that she would kill and dispose of the victim

in a few different ways. Defendant’s sister testified that, at

the time, she did not take Campbell’s statements seriously

because she “was always talking crazy.” She also testified

that, after the meeting in the restaurant parking lot, she told

defendant about Campbell having talked about killing the

victim and that she did not believe Campbell. Defendant’s

response was “You know, [Campbell] is like that.”

Jaynes is Campbell’s son. The month after the vic-

tim’s death, Jaynes’s girlfriend, Smith, contacted the police

tip line based on statements Jaynes had made to her. Jaynes

had acted surprised in her presence about a news report

of the victim’s death, but she believed that he had earlier

accessed news about the victim’s death on their shared com-

puter. Smith testified that Jaynes and defendant were com-

fortable, long-term friends and that, around the time of the

victim’s death, Jaynes was using a lot of drugs, “[w]hatever

his mom would give him.” At trial, the state also introduced

evidence suggesting that defendant had helped Jaynes get

out of criminal trouble in 1999, when Jaynes was 18 years

old, by making sure that a police report recommending

charges against Jaynes, based on his conduct of having sex

392 State v. Benton

with a 14-year-old girl, was not forwarded to the district

attorney’s office. The parties refer to this as the “sex crimes

coverup” evidence.

In 2012, the state and Campbell entered into a coop-

eration agreement and, pursuant to that agreement, she

testified to a grand jury. That grand jury indicted defendant

for aggravated murder, attempted murder, solicitation, and

conspiracy, and also indicted Jaynes for attempted aggra-

vated murder and conspiracy. The trial court later severed

defendant’s and Jayne’s charges for separate trials.

The police arrested defendant on November 7, 2012,

and, although the charges were filed in Clackamas County,

he was held at the Multnomah County Jail pending trial.

From April to July 2015, another inmate, Layman, was

housed in the same unit as defendant. At some point, one of

the jail deputies told Layman that defendant was in jail for

killing his wife. After Layman arrived in the unit, he and

defendant worked together as trustees in the jail, spending

up to eight hours a day together in their duties. After about

a month of working together, they also were housed in cells

next to each other and they would talk through the vent

from their respective cells.

In June 2015, Layman contacted his attorney and

asked him to notify the district attorney’s office that he had

information on defendant. In June and July, Layman gave

the state three proffers of information that he had obtained

in his conversations with defendant. In July, Layman moved

out of defendant’s incarceration unit and, in early 2016,

Layman and the state entered into a cooperation agreement.

In exchange for favorable sentencing recommendations in

his pending cases in both Clackamas and Multnomah coun-

ties, Layman agreed to testify against defendant.

Also in 2016, Campbell’s cooperation agreement

with the state fell apart and, ultimately, the state moved to

rescind it due to Campbell’s breach of that agreement. The

trial court granted the state’s motion on September 8, 2016,

which was about one week before defendant’s trial. The state

did not call Campbell to testify; as a result, the state’s case

at trial was based largely on Layman’s trial testimony.

Cite as 317 Or App 384 (2022) 393

During trial, which occurred during September and

October 2016, Layman testified about several conversa-

tions he had had with defendant. He testified that, early

in their conversations, defendant said that he had engaged

Campbell and Jaynes to kill the victim and that “he wished

he had stopped it because there was an overdose attempt

and he should have stopped it then because it got messy.”

Layman testified that, later on, defendant told him that

Campbell and Jaynes had tried to kill the victim with an

overdose of Fentanyl, using the Fentanyl patches prescribed

to the victim, and that the state had the wrong dates in the

indictment on that murder attempt—that it actually was a

few months later. Layman also testified that defendant said

that he had given Campbell a couple thousand dollars to

“rob and shoot his wife,” and that the plan was that defen-

dant and Jaynes were going to find the victim’s body after

Campbell shot her and took money from the till. However,

it did not happen that way; instead, Campbell called defen-

dant in a panic, saying that she shot the victim, but she did

not die, and Campbell only had the one bullet in the gun. In

response, defendant picked up Jaynes and they went to the

salon to “finish[ ] her off,” which included beating and chok-

ing the victim. Layman testified that defendant told him at

first that he had “finished it,” but later defendant said that

it was Jaynes who did. Layman also testified that defendant

told him that the reason he killed the victim was that he did

not want the victim to receive any of his retirement funds

in a divorce.

The jury found defendant guilty by unanimous ver-

dict of two counts of aggravated murder (Counts 1 and 2) and

two counts of conspiracy (Counts 6 and 7) and, by nonunan-

imous verdict, of one count of attempted murder (Count 8).

The trial court merged the guilty verdicts on Counts 2, 6,

and 7 into the guilty verdict on Count 1, for a single convic-

tion of aggravated murder. Ultimately, the trial court dis-

missed Count 8 based on defendant’s post-judgment motion.

On appeal, defendant raises 31 assignments of error, some of

which challenge certain counts, but not others. We address

below defendant’s assignments 6 through 17, and, based on

our disposition of those assignments, we need not reach the

remaining assignments.

394 State v. Benton

II. VARIANCE OF PROOF FROM

THE INDICTMENT

In assignments of error 11 to 14, defendant chal-

lenges the trial court’s denials of his demurrers and motions

to dismiss Counts 6 through 8. In assignments of error

15 to 17, defendant challenges the trial court’s denials of

his motions for judgment of acquittal (MJOA) on Counts

6 through 8. Because defendant’s arguments for all those

assignments are based on alleged variances from the indict-

ment and the proof presented at trial, we address them

together in this section, including those assignments related

to Count 8, because defendant argues that the trial court’s

failure to dismiss that count earlier in the proceedings prej-

udiced his trial. As explained below, we conclude that the

trial court did not err in denying defendant’s motions.

A. Factual and Procedural Background

The grand jury indicted defendant on two counts

of criminal conspiracy in Counts 6 and 7 and one count of

attempted murder in Count 8. For Count 6, the indictment

alleged, in part, that

“defendant * * * on or about January 1, 2010, * * * did

unlawfully, with intent that conduct constituting the crime

of aggravated murder punishable as a felony be performed,

agree with Susan Campbell to cause and engage in the per-

formance of the following conduct, pursuant to an agree-

ment that Susan Campbell receive money and a thing of

value for doing so, cause the death of [the victim].”

Similarly, for Count 7, the indictment alleged, in part, that

“defendant * * * on or about January 1, 2010, * * * did

unlawfully, with intent that conduct constituting the crime

of aggravated murder punishable as a felony be performed,

agree with Jason Jaynes to cause and engage in the perfor-

mance of the following conduct, pursuant to an agreement

that Jason Jaynes receive money and a thing of value for

doing so, cause the death of [the victim].”

And for Count 8, attempted murder, the indictment alleged

in part that “defendant * * * on or about February 6, 2011,

* * * did unlawfully and intentionally attempt to cause the

death of [the victim].”

Cite as 317 Or App 384 (2022) 395

Before trial, defendant filed a demurrer to the

indictment on Counts 6 through 8, arguing that the indict-

ment was no longer based on facts found by the grand jury,

violating Article VII (Amended), section 5(3), of the Oregon

Constitution. Defendant asserted that Campbell had testi-

fied to the grand jury only about a solicitation, conspiracy,

and murder attempt between her, Jaynes, and defendant, in

which, during the 2011 Super Bowl game, they used insu-

lin in an attempt to poison the victim. However, for trial,

the state intended to rely on the testimony of Layman, who

would testify about a solicitation, conspiracy, and murder

attempt between Campbell, Jaynes, and defendant to poi-

son the victim using Fentanyl patches, which occurred on

a different, later date than the alleged insulin attempt.

Defendant further argued that the change in theory preju-

diced his defense, because he was prepared to defend against

allegations related to the overdose attempt with insulin, and

not an overdose based on Fentanyl at a later date.

After a hearing, the trial court found that the grand

jury notes showed that Campbell had testified to the grand

jury about several methods of attempting to kill the victim,

including with “[a] gun * * *, some drugs—that was men-

tioned several times[,] or drug overdoses[,] tossing her into

a river[,] a fake suicide[,] and a diabetic coma with insulin.”

The court stated that the grand jury was presented with evi-

dence of drug overdoses, mostly about insulin, but also “other

drugs,” and that the court could not tell that the grand jury

was not presented with the theory that the drug overdose

was from Fentanyl patches, as included in “other drugs.”

Thus, the court concluded that Article VII (Amended), sec-

tion 5(3) was not offended and that no amendment to the

indictment was made by a change in the state’s theory of

the case. After the state rested its case at trial, defendant

renewed his motion to dismiss Counts 6 through 8, which

the trial court rejected on the same basis.

Defendant also brought MJOAs on Counts 6 through 8,

arguing that the state failed to present any evidence of a

conspiracy to commit aggravated murder that occurred

on or about January 1, 2010, as alleged in the indictment.

Defendant asserted that the only evidence was that, at most,

396 State v. Benton

defendant had failed in an attempt to overdose the victim

with Fentanyl in May 2011, based on defendant’s uncorrob-

orated confession to Layman. Defendant argued that all

of the evidence and witnesses as to the attempted murder

charge had concerned an alleged insulin poisoning based

on Campbell’s then cooperation with the state, and the state

never asserted a Fentanyl overdose until Layman brought it

up; however, the victim’s prescription for Fentanyl started in

May 2011, well after the dates alleged in the indictment for

conspiracy and attempted murder.

The court denied defendant’s MJOAs on Counts 6

through 8. The court first recounted some of the corroborat-

ing evidence of an agreement between defendant, Campbell,

and Jaynes, noting that “[k]eeping quiet about the sex crime

coverup, the relationship between the parties, the financial

relationship, * * * Campbell’s DNA at the scene, * * * defen-

dant’s motive regarding * * * some evidence of domestic

violence between him and the victim are all the types of

circumstantial evidence that would provide that type of evi-

dence for murder for hire.” The court ruled, “I believe that’s

enough to go to the jury with the other evidence that I’ve

indicated that the state has regarding the existence of an

agreement. I think that includes the fact of the day the mur-

der occurred, the victim’s relationship falling apart with

* * * defendant and the prior experience * * * defendant had

with divorce.”

In its closing, the state argued that Counts 6 and 7

related to the agreements between defendant and Campbell

and defendant and Jaynes to kill the victim for money or

a thing of value. The state further argued that it did not

need to prove the date on which the agreement took place,

and that the evidence showed it occurred sometime after

January 1, 2010, which was the date in the indictment. The

state argued that Count 8 related to the poisoning of the

victim by Campbell and Jaynes using the victim’s Fentanyl,

because defendant aided and abetted that crime by solicit-

ing Campbell and Jaynes to kill the victim. The state argued

that the date in the indictment was off by a few months,

as testified to by Layman as something that defendant told

him.

Cite as 317 Or App 384 (2022) 397

After the entry of judgment on the jury’s guilty

verdicts, defendant moved for a new trial arguing, among

other things, that the state’s variance in proof on Counts 6

through 8 amounted to an impermissible amendment of the

indictment that prejudiced defendant’s case. Ultimately,

the court denied defendant’s motion on Counts 6 and 7, but

granted it on Count 8 and, as a result, dismissed Count 8.

The court ruled:

“As I previously indicated, the Court cannot know from the

evidence which theory the grand jury used in Counts 6, 7,

and 8. We do know that * * * Campbell and not * * * Layman

testified at the grand jury, however. We do know that the

grand jurors’ notes reflect they heard about several mur-

der attempts over time and a specific murder attempt

around the Super Bowl Game in February 2011 involving

an attempted insulin overdose. Counts 6 and 7 involved

agreements between co-defendants over time to commit the

murder. There was evidence to that effect, albeit by * * *

Layman’s (rather than * * * Campbell’s) testimony regard-

ing [defendant’s] statements within the general time period

after the date alleged in the indictment. The grand jury

notes failed to identify a specific instance that resulted in

the January 1, 2010 date alleged in Counts 6 and 7. The

law does not require such specificity in the indictment. No

new theory was alleged or proven at trial.

“Count 8 is a different matter. The grand jurors’ notes

do not reflect they received testimony regarding [F]entanyl

patches or pills; only that an attempted insulin overdose

occurred around Super Bowl Sunday in February 2011.

Evidence at trial was that an attempted murder occurred

involving [F]entanyl, that [the victim] had a [F]entanyl

prescription issued three months later in May 2011, and

that [defendant] told * * * Layman that the ‘idiots got the

dates wrong.’ The [s]tate argued that the victim’s prescrip-

tion for [F]entanyl three months after the February date

in the indictment was close enough under the ‘on or about’

language in the indictment and that the grand jurors’ notes

reflected several overdose attempts over time. However,

this argument ignores the fact that the grand jurors’ notes

specifically link the insulin attempted murder charge to

the Super Bowl 2011 date in Count 8. That was not the

evidence at trial nor was the change one only ‘pertaining to

form’ versus substance under State v. Wimber, [315 Or 103,

398 State v. Benton

843 P2d 424] (1992). Consequently, [d]efendant’s Motion to

Dismiss is granted as to Count 8 only.”

On appeal, defendant assigns error to the trial

court’s denial of his pretrial motion to dismiss Counts 6

through 8; to the trial court implicitly allowing the state to

amend Count 8 in the indictment; to the trial court allow-

ing the state to present evidence of an uncharged murder

attempt; to the trial court’s denial of defendant’s midtrial

motions to dismiss Counts 6 through 8; and to the trial

court’s denial of defendant’s MJOAs on Counts 6 through 8.

Although defendant presents combined arguments for

Counts 6 through 8, we address Counts 6 and 7 separately

from Count 8, because they raise different considerations

based on the trial court’s ultimate dismissal of Count 8 after

defendant’s post-judgment motion.

B. Applicable Law

Defendant’s arguments implicate two interrelated

lines of case law. Both stem from the requirements of

Article VII (Amended), section 5(3), which provides, “Except

as provided in subsection (4) and (5) of this section, a person

shall be charged in a circuit court with the commission of

any crime punishable as a felony only on indictment by a

grand jury.” The first line of cases addresses whether a state

amendment to an indictment that was not first presented to

a grand jury is permissible. We evaluate whether an amend-

ment is constitutionally permissible using the three-step

inquiry outlined in State v. Wimber, 315 Or 103, 843 P2d 424

(1992); see also State v. Haji, 366 Or 384, 399, 462 P3d 1240

(2020) (explaining that Wimber “was focused on changes to

the allegations concerning the crimes charged, as found by

the grand jury”). The second line of cases is closely related

and addresses whether the state may permissibly present

evidence or a theory at trial that varies from the factual

proof presented to the grand jury that formed the basis for

the allegations in the indictment. To determine if a variance

in proof is permissible, we evaluate the two prongs identi-

fied in State v. Long, 320 Or 361, 885 P2d 696 (1994), cert

den, 514 US 1087 (1995).

Although defendant makes arguments under both

Wimber and Long, because the state did not seek to amend

Cite as 317 Or App 384 (2022) 399

the indictment, and the court did not allow any amendments,

we follow the analysis set out in Long and its progeny, and

do not undertake any analysis under Wimber. See State v.

Newman, 179 Or App 1, 5, 7 n 5, 39 P3d 874 (2002) (where

there was not a formal request to amend the indictment,

the legal issue was “whether there was a material variance

between the allegations in the indictment and the proof at

trial,” which is analyzed under the methodology in Long).

“Whether a variance between the state’s pleading

and proof is permissible is a question of law, which we review

for legal error.” State v. Samuel, 289 Or App 618, 626-27, 410

P3d 275 (2017), rev den, 363 Or 104 (2018). To determine if a

variance is permissible, we consider “whether the variance

concerns a material element [of the crime] and whether the

variance prejudiced the defendant.” Id. at 627. If the vari-

ance either concerns a material element or prejudices the

defendant, it is impermissible. Id. We determine whether a

variance concerns a material element of a crime “by deter-

mining whether the indictment states a crime without the

disputed allegation * * *, or, in other words, whether that

allegation is a material element of the crime.” Newman, 179

Or App at 9. “ ‘Whether a variance is prejudicial depends on

the specific theories under which a case is argued.’ ” Samuel,

289 Or App at 627-28 (quoting State v. Boitz, 236 Or App 350,

356, 236 P3d 766 (2010) (emphases in Boitz)). If the variance

would require a defendant to develop a different argument

or theory of defense, then the variance is prejudicial to the

defendant. Samuel, 289 Or App at 628.

The court in Long addressed one final consideration,

which is also present in this case—whether the defendant

was, in fact, tried on the offense that was indicted by the

grand jury. Long, 320 Or at 370. As to that claim, the state

has the burden to show that the factual theory on which the

grand jury based the indictment was the same one on which

the state tried its case. Id.; Samuel, 289 Or App at 631-32.

C. Analysis of Counts 6 and 7: Criminal Conspiracy

We first briefly recap the issues raised by defen-

dant below with respect to Counts 6 and 7. Before trial,

defendant moved to dismiss the indictment on the ground

that the state was no longer relying on the facts that were

400 State v. Benton

presented to the grand jury for those counts. The trial court

denied that motion, concluding that the grand jury was

presented with the factual theories relied on by the state,

that it could not speculate about which theory the grand

jury relied on, and that no amendment to the indictment

was made. During trial, defendant renewed his motion to

dismiss Counts 6 and 7, which the trial court rejected on

the same basis. Defendant also argued that he was enti-

tled to an MJOA on Counts 6 and 7, because the factual

theory presented at trial did not match the date in the

indictment—on or about January 1, 2010. The trial court

denied that motion, focusing on the existence of corroborat-

ing evidence for defendant’s statements to Layman suggest-

ing a conspiracy.

On appeal, defendant argues that the state failed to

meet its burden to prove that the crimes for which he was

indicted in Counts 6 and 7 were the same crimes for which

he was tried and convicted. Defendant argues that the

only evidence presented to the trial jury about agreements

between defendant, Campbell, and Jaynes were those sur-

rounding (1) the Fentanyl overdose in May 2011 and (2) the

completed murder on May 28, 2011. Because the trial court

ultimately determined that the Fentanyl overdose evidence

was not presented to the grand jury and was not the factual

basis for the attempted murder count (Count 8), defendant

argues that that evidence also could not be the factual basis

for the conspiracy charges in the indictment. With respect

to the completed murder, defendant argues that there was

no evidence presented to the grand jury that there was an

agreement devised in January 2010 to kill the victim in May

2011 and that “it is not possible that the grand jury based

Counts 6 [and] 7 on agreements that might be inferable from

the circumstances surrounding those crimes.” Defendant

further argues that the variance was prejudicial because it

stripped him of the defense theory that the conspiracy could

not have begun in or about January 2010, because that is

around the same time that defendant and the victim became

domestic partners.

Relatedly, with respect to the denials of his MJOAs,

defendant argues that, with respect to Count 7—conspiracy

Cite as 317 Or App 384 (2022) 401

between defendant and Jaynes—the state presented no evi-

dence that, on or about January 1, 2010, defendant entered

into an agreement with Jaynes to pay Jaynes to kill the

victim, and it also presented no circumstantial evidence to

support a nonspeculative inference that such an agreement

was made. Defendant asserts that the only evidence—aside

from defendant’s confession to Layman about an overdose

attempt—that could support an inference of a conspir-

acy with Jaynes is the plan they concocted in the immedi-

ate aftermath of Campbell’s attempt to kill the victim on

May 28, 2011. Defendant argues, however, that that conspir-

atorial agreement, which occurred 17 months after the date

in the indictment, would allow defendant to be convicted on

proof that is a prejudicial variation from the indictment.

With regard to his MJOA on Count 6—conspiracy

between defendant and Campbell—defendant argues that

there was no evidence of an agreement entered into, on or

about January 1, 2010, for defendant to pay Campbell to kill

the victim. Defendant asserts that the only evidence of an

agreement was Layman’s testimony that defendant had said

that he had agreed to pay Campbell $2,000 to shoot the vic-

tim. He asserts that, because that evidence was not linked

to the date in the indictment, “there is no evidence of the

specific conspiracy to commit aggravated murder that the

grand jury charged.”

Defendant also asserts that the state’s “ongoing

conspiracy” theory is not legally cognizable, because con-

spiracy is a crime that is complete on agreement, and any

subsequent conduct is not part of the crime; it is merely

evidence of the prior agreement. The problem, defendant

argues, is that the subsequent conduct must be rationally

linked to proving the indicted agreement, not a different,

later, uncharged agreement.

In response, the state asserts that there was no vari-

ance of proof at all with respect to Counts 6 and 7. The state

argues that its trial theory was that defendant, Campbell,

and Jaynes entered into a conspiratorial agreement, which

resulted in multiple murder attempts, and continued until

they killed the victim, and that that theory was consistent

with the facts and theory presented to the grand jury.

402 State v. Benton

The state argues that the only possible variance is

that it did not prove an exact date on which the conspiracy

started. That variance, the state asserts, is neither material

nor prejudicial. The state asserts that time is not a material

element of conspiracy and that it only needed to prove that

an agreement did, in fact, exist, which is proved through

circumstantial evidence of the steps taken in furtherance of

such an agreement. The state also counters that defendant’s

theory of prejudice is not cognizable, because prejudice rests

on whether “the date in the indictment misled the defen-

dant and prejudiced him in the preparation of his defense.”

The state argues that defendant knew well before trial that

the state’s theory was an ongoing conspiracy that started

sometime after January 1, 2010, and ended with the death

of the victim. In addition, the state argues that it presented

sufficient evidence that defendant conspired with Jaynes

and Campbell to kill the victim before the actual day of the

murder.

Based on the parties’ arguments, the variances of

proof at issue here are that (1) specific evidence of the con-

spiracy at trial was not tied to the date in the indictment

and (2) the state relied on different circumstantial evidence

to support its theory of conspiracy before the grand jury and

at trial—specifically, that the attempted murder Layman

testified about at trial (the Fentanyl overdose) was not the

attempted murder Campbell testified about to the grand

jury (the insulin overdose) that formed the basis for Count 8

in the indictment. We conclude that those alleged variances

are neither material nor prejudicial under Long.

We first address if those variances are material,

which requires us to determine whether the variance con-

cerns a material element of the crime “by determining

whether the indictment states a crime without the disputed

allegation.” Newman, 179 Or App at 9; see also Samuel, 289

Or App at 627 (“The test for whether a variance concerns a

material element depends on whether the indictment states

an offense without the allegation.” (Internal quotation

marks and brackets omitted.)).

The first alleged variance in proof is that the

specific evidence of conspiracy presented at trial, which

Cite as 317 Or App 384 (2022) 403

primarily centered on the alleged conspirators’ conduct in

April and May 2011, was not tied to the date in the indict-

ment for Counts 6 and 7—January 1, 2010. That alleged

variance was a basis for both defendant’s motions to dismiss

and his MJOAs as to the conspiracy charges. That date,

however, is not a material element of the crime. The date

could be struck from the indictment, and it would still state

the crime of conspiracy. Under ORS 161.450(1), “[a] person

is guilty of criminal conspiracy if with the intent that con-

duct constituting a crime punishable as a felony or a Class A

misdemeanor be performed, the person agrees with one or

more persons to engage in or cause the performance of such

conduct.” The date of the formation of such an agreement

is not a material element of the crime of conspiracy—if the

date were struck from the indictment in Counts 6 and 7, it

would still state the crime of conspiracy.

The variation in proof as to the overdose attempt

is also not material to the charged crimes of conspiracy.

As charged in the indictment, defendant was accused of

committing criminal conspiracy, “on or about January 1,

2010,” with the intent that aggravated murder be per-

formed, agreed with Campbell (Count 6) or Jaynes (Count 7)

that “pursuant to an agreement that [Campbell or Jaynes,

respectively] receive money and a thing of value for doing

so, cause the death of [the victim].” That statutory theory of

the crime was not tied to specific circumstantial evidence of

steps taken in furtherance of the conspiracy, and it was the

theory submitted to the jury at trial. There was no variance

in that respect to which the first prong of the Long analysis

could apply. See Samuel, 289 Or App at 627.

We turn to whether the alleged variances were

prejudicial under Long. “Whether a variance is prejudi-

cial depends on the specific theories under which a case

is argued.” Boitz, 236 Or App at 356 (emphases omitted).

“[T]he variance between the state’s pleading and its proof

[is] impermissible [when] it require[s] defendant to defend

against a different theory than that specified in the indict-

ment.” Samuel, 289 Or App at 630. The test is whether the

defendant was misled or prejudiced in the preparation of his

defense. State v. Kowalskij, 253 Or App 669, 674, 291 P3d

404 State v. Benton

802 (2012), rev den, 353 Or 748 (2013). To illustrate that test,

for example, in Boitz, the state had alleged, as a sentence

enhancement fact, that the defendant had been on “release

status from other pending criminal charges,” when he com-

mitted the crime. The trial court found the enhancement

fact based on evidence that the defendant was on probation

and out in the community. Boitz, 236 Or App at 352-53.

We concluded that the variance was impermissible under

the prejudice prong of Long because defendant’s theory of

defense was that he did not commit the crimes while crimi-

nal charges were pending and allowing the variance would

have required the defendant to develop a different theory

of defense. Id. at 356. In contrast, for example, in State v.

Stavenjord, 290 Or App 669, 672, 415 P3d 1143, rev den, 363

Or 481 (2018), the charging instrument alleged that the

crime occurred “on or about July 21.” The state’s proof at

trial was that the crime occurred on July 19. The defendant

argued that the variance was prejudicial because she had an

alibi for July 21. We rejected the defendant’s argument that

any variance was prejudicial, because the defendant was not

surprised by the proof at trial that the theft took place on

July 19—that evidence included a police report and a date-

stamped surveillance video that the defense received well

before trial. That is, the alleged variance did not prejudice

the defendant’s ability to prepare a defense to the charged

crime. Id. at 673-74.

Here, defendant’s theory of prejudice is that he had

no motive to conspire to kill the victim in January 2010, as

opposed to a later, different date, and the variance was, thus,

prejudicial to his defense. Defendant’s theory of prejudice

is also intertwined with his argument that the attempted

murder to which Layman testified—an overdose in May

2011 using Fentanyl—could not form the factual basis for

the conspiracy charges, because it was not presented to the

grand jury. That argument speaks to the additional consid-

eration in Long identified above—whether the defendant

was, in fact, tried on the offense for which he was indicted

by the grand jury. Long, 320 Or at 370. The state has the

burden to show that the factual theory on which the grand

jury based the indictment was the same one on which the

state tried its case. Id.; Samuel, 289 Or App at 631-32.

Cite as 317 Or App 384 (2022) 405

With regard to the additional consideration, as

already explained, the statutory theory of the crime as

indicted was the theory submitted to the jury at trial, and,

more to the point for prejudice under Long, the state’s factual

theory of conspiracy did not change between the indictment

and trial. The state’s factual theory was that sometime after

January 1, 2010, defendant and Campbell, and defendant

and Jaynes, formed an agreement that, in exchange for a

thing of value, Campbell and Jaynes would cause the vic-

tim’s death, and that that agreement continued until the

victim’s death. As found by the trial court, the grand jury

notes do not reflect that it was presented with any evidence

that tied the conspiracy charges to the January 1, 2010, date

in the indictment. As it did with the trial jury, the state

primarily presented evidence to the grand jury of a murder

attempt and murder that both occurred in 2011 as circum-

stantial evidence that the conspiracy existed. The factual

allegations supporting the conspiracy charges, as indicted

and as tried, were not tied to a particular murder attempt

or the completion of the murder, nor were they required to

be. See State v. Brewer, 267 Or 346, 350, 517 P2d 264 (1973)

(explaining that proof of an overt act in furtherance of the

conspiracy is not required by ORS 161.450); see also State

v. Brewer, 12 Or App 105, 108-09, 504 P2d 1067, aff’d, 267

Or 346, 517 P2d 264 (1973) (“The existence of a conspiracy,

and its objective, may be proven by circumstantial evidence.

The conspiracy may be inferred from the circumstances and

from the declarations, acts, and conduct of the conspirators.”

(Internal citations and quotation marks omitted.)). The state

thus did show that the factual theory on which the grand

jury based its indictment was the same as the factual theory

on which it tried the case. Cf. Samuel, 289 Or App at 631-

32 (distinguishing Long because “in this case the state did

not carry its burden of proving that the factual theory upon

which the grand jury based its indictment was the same as

that upon which the state tried its case”). The state was not

required to limit itself to only the circumstantial evidence

that had been presented to the grand jury to support the

inference that the conspiracy was formed sometime between

January 1, 2010, and the completion of the murder. Rather,

it could present different circumstantial evidence of the

406 State v. Benton

same conspiracy at trial to support that same factual theory

of the crime.

Additionally, because the factual theory of the

crimes did not vary, defendant was not prejudiced by the

evidence of conspiracy at trial not being tied to the date in

the indictment of January 1, 2010. Defendant’s argument

that he did not have a motive to conspire to kill the victim in

January 2010 is not the type of prejudice to which the prej-

udice prong in Long is directed. See Stavenjord, 290 Or App

at 673 (defendant was not prejudiced by a variance in the

proof of the date of the crime where defendant argued she

had an alibi for the date in the indictment, but not the date

proved at trial). Long looks at whether the variation caused

the defendant to be misled or prejudiced in preparation of a

defense. As explained, the state’s factual theory of conspir-

acy did not change such as to prejudice defendant’s ability to

prepare a defense.

Finally, we reject defendant’s assertion that the

state’s “ongoing conspiracy” theory is not legally cognizable.

As stated above, the state was not required to prove that

the conspiracy agreement occurred on a particular date. It

is also logical that conspirators could take actions in fur-

therance of a conspiracy that play out over time. Those sub-

sequent actions are still circumstantial evidence that a con-

spiracy exists, and began at some point before those actions,

even though the actions may be removed in time from the

initial agreement. There is nothing about the state’s theory

that suggests its factual theory of the conspiracy prejudi-

cially varied from the indictment.

There is one additional matter that defendant argues

with respect to his MJOA on Count 7—defendant’s conspiracy

with Jaynes. In addition to the variance in proof, defendant

asserts that the state failed to present evidence of a conspir-

acy with Jaynes at all, other than what may have occurred in

the moment when Campbell failed to kill the victim with the

gunshot on May 28, 2011. We reject that argument without

extended discussion. Viewed in the light most favorable to

the state, there was sufficient evidence from which the jury

could find that defendant conspired with Jaynes to kill the

victim in exchange for a thing of value.

Cite as 317 Or App 384 (2022) 407

D. Analysis of Count 8: Attempted Murder

Having determined that the court did not err in not

dismissing Counts 6 and 7, we turn to defendant’s assign-

ments of error as they pertain to Count 8. The trial court did

ultimately dismiss Count 8, following entry of the judgment.

As a result, it would appear that defendant’s assignments

are moot, or that any error is harmless. Defendant, how-

ever, asserts that the assignments are not moot or harm-

less, because the trial court’s failure to dismiss Count 8

before or during trial allowed the state to present evidence

of an uncharged attempted murder (the Fentanyl overdose),

which, but for the trial court’s delayed ruling, he could

have challenged as inadmissible prior bad act evidence or

obtained a limiting jury instruction. Defendant also argues

that the court’s error undermined the structural integrity of

the entire trial for various reasons.

We conclude that any error in failing to dismiss

Count 8 earlier in the case was harmless, because the evi-

dence of the attempted Fentanyl overdose was relevant and

admissible as circumstantial evidence of the existence of

the conspiracy alleged in Counts 6 and 7. As a result, the

evidence was not susceptible to a challenge as inadmissible

prior bad acts evidence, which applies when prior bad acts

are offered “to prove the character of a person in order to

show that the person acted in conformity therewith.” OEC

404(3); see also State v. Jackson, 368 Or 705, 717, 498 P3d

788 (2021) (“If the proponent’s theory of relevance requires

the factfinder to employ propensity reasoning—to rely on

an inference about the defendant’s bad character and resul-

tant propensity to commit criminal acts—at any link in the

chain of logical relevance, then the evidence is subject to

the limits on character evidence in OEC 404(3).” (Internal

quotation marks omitted.)); State v. Skillicorn, 367 Or 464,

475-76, 479 P3d 254 (2021) (“ ‘ “[C]haracter” for purposes of

evidence law means a person’s disposition or propensity to

engage or not engage in certain types of behavior.’ ” (Quoting

Laird C. Kirkpatrick, Oregon Evidence § 404.03, 213 (7th ed

2020).)). Here, the evidence was relevant for a noncharac-

ter (or propensity) purpose. The evidence that Campbell and

Jaynes attempted to administer a Fentanyl overdose to the

408 State v. Benton

victim was circumstantial evidence of the existence of the

charged conspiracy between defendant and Campbell and

Jaynes and the chain of logical relevance from that evidence

to that ultimate fact does not rely on an inference relating

to defendant’s character or propensity to commit criminal

acts. Accordingly, we reject defendant’s arguments.

In sum, the trial court did not err in any of the

respects asserted in defendant’s assignments of error 11

through 17.

III. MOTION TO SUPPRESS DEFENDANT’S

STATEMENTS TO LAYMAN

We next address the trial court’s denial of defen-

dant’s motion to suppress all or some of his statements to

Layman, which defendant raises in assignments of error

7 through 10. Defendant argues that, based on the gov-

ernment involvement in Layman’s obtaining information

from defendant, Layman was acting as a state agent and,

because defendant was represented by counsel for the pend-

ing charges in this case, Layman’s questioning of defen-

dant violated his rights under Article I, sections 11 and 12,

of the Oregon Constitution, and the Sixth Amendment to

the United States Constitution. We review for legal error,

while accepting the trial court’s findings of historical fact.

See State v. Smith, 310 Or 1, 12-15, 791 P2d 836 (1990)

(taking that approach under the Oregon Constitution);

U. S. v. Henry, 447 US 264, 270, 100 S Ct 2183, 65 L Ed 2d

115 (1980) (similar approach under Sixth Amendment).

As explained below, we conclude that, after the sec-

ond proffer meeting with Layman on July 2, 2015, the state

involvement in Layman’s questioning of defendant was suf-

ficient to trigger the state constitutional exclusionary pro-

tections. Accordingly, the trial court erred in failing to sup-

press statements that defendant made to Layman after that

July 2 meeting, and that error was not harmless.

A. Factual and Procedural Background

The trial court made extensive findings of fact after

a five-day suppression hearing. We take the following from

the trial court’s findings of fact, as supplemented by undis-

puted testimony at the hearing on defendant’s motion.

Cite as 317 Or App 384 (2022) 409

From April to July 2015, Layman was incarcerated

in the same unit as defendant in the Multnomah County

Jail, while Layman awaited resolution of charges for rob-

bery and kidnapping in Multnomah County and charges for

drug delivery in Clackamas County. He was placed in the

unit for protective custody after he offered testimony to the

state against fellow inmates at a different facility. As found

by the trial court, Layman had “often provided testimony

against other inmates o[r] co-defendants in the past for var-

ious types of consideration from law enforcement and prose-

cutors,” including offering testimony against co-defendants

in the cases pending against him in 2015. And, “[s]ome-

times his offers and information have been received posi-

tively resulting in benefit to him and sometimes they have

not.”

Defendant worked as a trustee in the unit, which

meant that he was allowed out of his cell for long periods

to work in the unit during the day, primarily to clean and

serve meals. Shortly after Layman arrived, defendant was

transported to Clackamas County for a hearing and, while

he was away, Layman also became a trustee. When defen-

dant returned, Layman and defendant shared information

about their lives while they worked together as trustees.

Layman was unaware that defendant had been a police offi-

cer and initially was unaware of defendant’s charges. After

about a month and one-half of working together, Layman

and defendant were placed in cells next to each other at their

request. As the trial court found, “[w]hen Layman learned

from Multnomah County [d]eputies that [d]efendant was

involved in the murder of a woman, Layman took private

notes of those conversations without dating them.” Defendant

was very “tight-lipped” about his case, but, after a while, he

began to share information with Layman about his pend-

ing charges, including, within a couple of weeks, implying

that he had committed the murder. Layman did not review

or read any of the discovery that defendant kept in his cell.

In early June, Layman contacted his attorney and

asked him to notify the Clackamas County District Attorney’s

Office (CCDA) that he had information about defendant.

Then-Deputy District Attorney John Wentworth told CCDA

410 State v. Benton

Investigator Brian Schmautz that Layman wanted to talk

to them. To arrange the meeting, Schmautz called the jail

and spoke with a captain and asked that Layman be put on

the court docket for “something” so that he could be trans-

ported to the Multnomah County Courthouse “and it would

not appear as if he’s meeting with law enforcement.” The

captain made that arrangement for transport.

On June 16, Layman and his two attorneys—one

who represented him in his Clackamas County case and

one who represented him in his Multnomah County case—

met with Wentworth, another Clackamas County Deputy

District Attorney, Lewis Burkhart, Schmautz, and Oregon

State Police Detective Scott Sudaiser. Layman signed a

proffer agreement.

For the proffer, which was video recorded, Layman

read and explained a lengthy letter that contained notes on

conversations he had had with defendant, then answered

questions, and gave the letter to Schmautz. The proffer

lasted about an hour. Before he began reading, Layman

stated that he did not know that so many people would be

present, so he wanted to just read; he told them that if he

said “today” from his notes, it did not mean today, but could

be some time during the months that he had talked to defen-

dant. Schmautz asked if Layman could try to date when

defendant had made the statements. Layman then read

his letter, which included statements from defendant that

“he wishes he would have had his wife killed in Multnomah

County, because Clackamas County is crooked, and he

would only be looking at a little bit of time”; that he “should

have stopped it after the idiots screwed up the overdose”;

that “[h]e wishes he stopped it after the overdose attempt,

because it got messy”; that he should have left the country

after Campbell “started telling”; that his girlfriend knows

“that he did it”; that the only reason Jaynes had not turned

on defendant was “because they haven’t offered him a good

enough deal”; that Jaynes was involved with the overdose;

that Campbell’s husband was there and knew about the

overdose; and that the victim “had it coming.”

After Layman read his letter, Schmautz asked him

questions. Layman answered that he did not know anything

Cite as 317 Or App 384 (2022) 411

about defendant’s case other than what defendant had told

him; he had not looked at any of the discovery that defendant

kept in his cell. Schmautz also asked if defendant had dis-

closed how Campbell, Jaynes, and Campbell’s husband were

involved. Layman said that he did not know how Jaynes was

involved, and that, according to defendant, Campbell “did

it” and the husband was at the crime scene. Schmautz also

asked if Layman knew what defendant’s college degree was

in or what he did for a job before the murder. Layman did

not know.

Sudaiser asked specific questions about the over-

dose attempt. Layman answered that there was only one

attempt that defendant talked about and that Campbell and

Jaynes were involved. He did not know what was used for

the attempt or when it occurred, and he did not know what

defendant meant by “it got messy.” Sudaiser also asked ques-

tions about defendant’s role in the murder and what he did

after the murder, before his arrest. Layman did not know.

Layman believed that defendant was giving Campbell some-

thing for the murder, maybe drugs.

Near the end of the proffer, Schmautz and Layman

had the following exchange:

“[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 we

would in any way direct you, or tell you to have any conver-

sations with him.

“[Layman]: All right.”

The questioning continued, with Sudaiser asking Layman

why he had taken notes and started talking to the investi-

gators and district attorneys. Layman said that he wanted

to remember what defendant had said if he had to “talk to

you” and that he “would hope that it would help me in my

case.” Layman also said that he did not like that defendant

did this to a woman. The trial court found that “[n]o agree-

ment [for consideration] existed at the time.”

412 State v. Benton

At the end of the proffer, Schmautz said, “So if

there’s anything that you remember that you need—that

you think that we do need to know to make an informed

decision, will you tell one of your attorneys, and they can

contact the prosecutor.” According to the trial court’s find-

ings, Schmautz “did not tell Layman NOT to ask any fur-

ther questions.” (Uppercase in original.)

Layman was returned to the unit where defendant

was also housed, and he continued to talk to defendant and

take notes on their conversations, this time making sure to

note the date of their interactions. At the suppression hear-

ing, Layman testified that he had started writing down

dates in his notes because he “knew the dates were import-

ant” and “as soon as they asked me about the date [at the

first proffer] I was like, you know what, I should—I should

write the date on these.” Also, as the court found, “Layman

continued to cooperate with law enforcement regarding

other cases in Multnomah and Clackamas Counties.”

After the proffer, Wentworth asked Schmautz to

secure a location at the courthouse where they could again

meet with Layman to negotiate consideration in exchange

for Layman’s testimony. Schmautz followed the same proce-

dure as before—contacting the captain to arrange Layman’s

transport for a hearing on “something,” so it would not

appear that he was talking to law enforcement. Wentworth

told Schmautz that Schmautz was not expected to interview

Layman, “unless he had information not provided in the

original proffer.”

On July 2, Layman met with his two attorneys,

Wentworth, Burkhart, and Schmautz. When it was clear

that an agreement for consideration for Layman’s testimony

was not going to be reached, Wentworth was prepared to

terminate the meeting. At that point, Layman said that he

had more information to give them. His second proffer of

information was audio recorded and lasted about 30 min-

utes. Layman told Schmautz that this time he had recorded

the dates of his conversations with defendant, and Schmautz

responded that he did want those dates. Layman again read

and explained his notes, answered questions, and turned

the notes over to Schmautz.

Cite as 317 Or App 384 (2022) 413

Layman’s new notes started on the day after his

first proffer and included comments from defendant about

his trial strategy, his relationship with his girlfriend, and

additional facts about the murder. Layman conveyed state-

ments from defendant that he had moved out a month before

the murder, and “he should have stopped it because it was

going to look bad”; that the victim was “shot then beat to

death”; that Campbell and her husband went to shoot the

victim, shot her once, left, and then called defendant, who

did not answer the call; that defendant was planning to find

the victim, but, when defendant got there, the victim was

alive and “so he had to finish it”; and that Campbell only

had one bullet and it was only .25 caliber. Defendant also

ended that story by saying that that was what the state had

alleged and that most of it was already out in the media.

Layman also said that, during another conversation, defen-

dant told him that he did not report the victim’s death after

he “finished it,” but left and later got a call from someone

and they met at the shop. Layman asked, “what did you do,

win an Oscar?” and defendant said “yes,” he “went to his

knees and started wailing.”

Schmautz asked for more information, focusing on

if defendant had told Layman where he was when he got the

call from Campbell, if defendant said how he had harmed

the victim, and if defendant told him what Jaynes did.

Layman did not have answers to those questions. Schmautz

also confirmed that Layman and defendant were still

housed together at the jail. Schmautz then said, “So as I

said last time you have to understand we are not directing

you to have any communication * * * with [defendant] at all.”

Layman responded:

“Yeah. As a matter of fact, after our last conversation,

I’ve kind of—I kind of actually pulled back a little bit, like,

okay, it’s kind of done. He’s not going to tell me anything.

“When he hit me with that, that was, like, kind of out

of left field, like he just * * * there was a part of me, like I

didn’t even want to go back and write it down. I was like,

‘This could just be all complete bullshit.’ ”

Schmautz asked Layman who initiated those con-

versations, and Layman said that it “stemmed from” Layman

414 State v. Benton

asking defendant if there was anything new after defendant

had had a meeting with an attorney or investigator. Layman

would then ask specific questions once defendant started

talking. Schmautz asked if defendant had talked about his

former occupation. Layman said that defendant was some

type of a manager and teaches some kind of class on emer-

gency response. No cooperation agreement between Layman

and the CCDA existed at the time of the second proffer.

That night after the second proffer, Layman wrote

to Multnomah County Judge You, stating that he had devel-

oped incriminating information on defendant and that he

was trying to negotiate a “fair deal” with the CCDA that

would factor into his open sentencing in his Multnomah

County case. He stated that they had met “today” to “final-

ize the deal” and that he thought the CCDA was going to

offer him significant time cut from his sentence. Instead,

Wentworth only offered to run Layman’s Clackamas County

sentence concurrent with his Multnomah County sentence,

which Layman described as “a slap in the face, considering

how much time and energy and stress me, you, my lawyer

and the DA have all gone through dealing with Clackamas

County * * * figuring a way around the uncooperative stance.”

He asked for “70 to 120 months suspended and release to

inpatient treatment” and five years’ probation. He closed

the letter saying, “my testimony is worth a lot more than

[Wentworth] wants to admit. He wouldn’t even talk to me if

it wasn’t.”

On July 6, Layman’s attorney in his Clackamas

County case obtained a trial continuance in that case with-

out objection from the district attorney.

On July 8, Layman sent a letter to Wentworth

about a deal on his sentencing. Layman wrote that he was

“excited” when he was going into the second meeting and

he “knew the info [he] had on [defendant] was even better.”

Layman wrote that the deal Wentworth offered was the

same one he had already worked out through 10 months of

negotiation and the information that he had provided with

regard to a different inmate. Layman asked Wentworth “if

you will recommend to [Multnomah County] Judge You a

long, suspended sentence.”

Cite as 317 Or App 384 (2022) 415

Layman sent Wentworth a second letter the same

day with additional information on defendant. Layman

wrote that defendant had told him that Jaynes was with

him when they went to check on the victim, that they found

her alive and had to “finish it.” Defendant also told Layman

that he was a police officer. Layman asked Wentworth “for

90 months suspended sentence contingent on my testimony

and completing of drug treatment.” Layman further wrote

that Wentworth should be willing to get him the suspended

sentence and, if not, “we go our separate ways.” Layman

later wrote Wentworth a third time, claiming that he had

“46 more pages of info on [defendant].” He wrote that he had

new information about how Jaynes helped defendant kill the

victim, about defendant’s trial strategy, and that Campbell

had called defendant and he had answered the phone in

front of two other police officers, while Campbell “was freak-

ing out” about having just shot the victim. In both of those

letters, Layman asked Wentworth to contact his attorneys

so that he could turn over the new information. Wentworth

did not respond to any of the letters.

On July 18, Layman was moved to a different area

of the Multnomah County Jail, apart from defendant, with-

out consultation with the CCDA.

On July 30, Layman and one of his attorneys met

with Wentworth, Burkhart, Schmautz, Sudaiser, and a

prosecutor for Multnomah County, Dennis Shen, for a third

proffer, which was video recorded, and lasted for a little over

an hour. Layman read from his notes, then answered ques-

tions, and handed over the notes. The notes again included

the dates that Layman had spoken with defendant, and they

began the day after his last proffer, July 3.

Layman explained how, on July 3, in a conversa-

tion with defendant, Layman had inquired whether he

could ask defendant specific questions about his case, and

defendant said that he could. Layman then proceeded to ask

specific questions on different days, and, in response, defen-

dant provided many new incriminating statements, until

Layman was moved from the unit on July 18. Defendant told

Layman details about Jaynes’s role in the murder, includ-

ing that Jaynes was the one who “finished it.” Defendant

416 State v. Benton

also revealed that he had been a police officer and answered

questions from Layman about the district attorneys he

used to work with. With regard to the attempted overdose,

defendant told Layman that Campbell had mixed up her

days and months such that she was “a couple months off” of

when the overdose attempt happened. Layman asked defen-

dant how she was going to overdose, and defendant replied,

“Fentanyl,” which the victim was taking for shoulder pain.

Defendant also told Layman more details about the day of

the victim’s murder, including what the original plan had

been and how it fell apart when Campbell shot the victim

once and she did not die. Layman asked what he had given

Campbell, and defendant said a couple thousand dollars.

Layman asked about the murder weapon; defendant would

not say what it was, but he revealed that the police had not

found it and that it likely had incriminating DNA on it.

Layman also asked about defendant’s motive, and defendant

said that he did not want the victim to get any of his money

in a divorce. Defendant also revealed that he was nervous

about his school records being subpoenaed, because it would

show that he was a trained EMT, yet he did not do anything

to try and save the victim when he found her.

After Schmautz and Sudaiser asked Layman ques-

tions, the recording was stopped. Although Layman was

no longer housed near defendant, Schmautz admonished

Layman that they were not instructing Layman to talk to

defendant. That admonishment was not recorded.

After the third proffer, negotiations continued

between Layman and the CCDA, which included settlement

conferences with the judge and district attorney in Layman’s

Multnomah County case. Of note, on September 10,

Layman’s attorneys met with Judge You, Wentworth, Burkhart,

and Shen. After they met, Wentworth and Burkhart left

the room, and Layman met with his attorneys, Judge You,

and Shen for a settlement conference on his Multnomah

County case. On September 16, Layman sent Wentworth

a letter because he was angry that he had heard that

a Clackamas County district attorney had “suggested

Multnomah threatened [sic] to charge me with a dangerous

offender [sentence]” at the meeting that had occurred with-

out Layman. Layman clarified in his testimony that he was

Cite as 317 Or App 384 (2022) 417

told dangerous offender sentencing was “brought up,” not

that he was threatened with it. Layman wrote in his letter

that he could not be scared into doing anything. He then

asked for a recommendation of 60 months with good time in

his Multnomah County case and stated that he thought he

could get 70 months without having to testify. A Multnomah

County district attorney on Layman’s case testified that her

office had not discussed the possibility of dangerous offender

sentencing in Layman’s case and that it was decided “early

in the case” that it would not be sought.

After continued negotiation, on or about January 16,

2016, Layman entered into a cooperation agreement with

the CCDA. Under the agreement, Layman committed to

cooperate and testify in defendant’s case and, in exchange,

the CCDA would appear at his Multnomah County sentenc-

ing and speak on his behalf, and, in the interim, sentencing

in that case was held open. Layman faced a minimum sen-

tence of 70 months in Multnomah County, but the agree-

ment permitted the Multnomah County DA to continue to

seek up to the maximum sentence.

In addition, the trial court found the following:

“27. At no time during the proffers did law enforcement

or the prosecutors share information regarding [d]efendant’s

case with Layman or ask Layman to question [d]efendant

about specific subjects. The subject matter of the questions

of Layman may have suggested that they were investigat-

ing or what they deemed important. However, there is no

evidence that this was the impetus behind Layman’s subse-

quent conversations of questioning of [d]efendant.

“28. Layman has a history of mental health issues

or treatment and drug and/or alcohol issues or treatment.

There is no evidence that these potential issues influ-

enced his contact with law enforcement or prosecutors. At

the time of the proffers, law enforcement was aware that

Layman had some of these issues.

“29. Layman had a meeting with Clackamas County

Deputy District Attorney Wentworth before he testified [at

the suppression hearing] in this case regarding ‘agency’

and being truthful.”

(Emphasis in original.)

418 State v. Benton

The trial court concluded that any “circumstantial

encouragement” by law enforcement or prosecutors was

insufficient to establish that Layman was acting as an

agent of the state or warranted application of the exclusion-

ary rule under State v. Sines, 359 Or 41, 379 P3d 502 (2016).

The court also concluded that there was not “positive official

encouragement to obtain incriminating statements” under

State v. Lowry, 37 Or App 641, 588 P2d 623 (1978), because

there was no evidence that the state intended Layman to

ask defendant questions on behalf of the state and, unlike

in Lowry, “Layman was never placed or allowed to remain

with [d]efendant purposefully to illicit said information; nor

was he compensated before or during his conversations with

[d]efendant.” The court also concluded that, using the words

of the Sixth Amendment legal standard, “[t]here is no evi-

dence that law enforcement or the prosecutors took some

action beyond merely listening to Layman that was designed

deliberately to elicit incriminating remarks of [d]efendant.”

Finally, the court concluded that “law enforcement was not

directly or indirectly involved to a sufficient extent in initi-

ating, planning, controlling, or supporting Layman’s activi-

ties.” The court denied defendant’s motion to suppress.

B. Arguments on Appeal

In four assignments of error, defendant alterna-

tively argues for four different temporal points at which

Layman became a state agent, such that defendant’s state-

ments to Layman must be suppressed after that point.

Those four points are (1) as soon as Layman began talking

to defendant, (2) June 16, 2015, the date of Layman’s first

proffer, (3) July 2, 2015, the date of Layman’s second proffer,

and (4) July 6, 2015, the date that Layman’s trial date in

Clackamas County was set over. Defendant argues that his

statements to Layman should have been suppressed under

both Article I, sections 11 and 12, and the Sixth Amendment,

because Layman was sufficiently encouraged or supported

by the state in obtaining information from defendant to

warrant such suppression.

Defendant points to the following facts as signifi-

cant for all four temporal points: Layman had a history of

providing information to the state in exchange for benefits

Cite as 317 Or App 384 (2022) 419

and was actively working as an informant on a different mat-

ter when he met defendant; Layman was moved to the same

protective custody housing that defendant was in because of

Layman’s work as an informant; a deputy informed Layman

that defendant was being held on a murder charge; Layman

and the state understood that, when Layman contacted the

state and arrived to make his first recorded statement, the

state was seeking to assess the value of Layman’s informa-

tion and Layman was hoping to obtain a benefit from the

state in exchange; and the state encouraged Layman’s con-

duct by having four high-ranking members of the prosecu-

tion team meet with Layman, by telegraphing to Layman

the topics that it wanted more information on, and by stat-

ing that they were open to receiving additional information

from Layman. Defendant argues that the state’s statement

that it was not “directing” Layman to elicit additional infor-

mation from defendant could not undo the encouragement

that the state already had given. Defendant argues that all

of his statements to Layman should have been suppressed

because no practicable separation of admissible and inad-

missible statements could be made from Layman’s testi-

mony, but, at the least, he was entitled to suppression of all

of the statements he made to Layman after the date of the

first proffer.

In the alternative, defendant asserts that Layman

became a state agent by his second meeting with the state

on July 2, 2015. Defendant points to the following additional

facts to support that position: the state again communi-

cated with the jail to facilitate obtaining information from

Layman; the state recognized that Layman might develop

additional information from defendant in response to the

first proffer; the state exercised leverage over Layman in its

benefit offer, prompting Layman to provide additional infor-

mation (and putting Layman on notice that he needed to

obtain additional information to get the benefit he wanted);

Layman started documenting the dates of defendant’s state-

ments, after the state requested such dates during his first

proffer, and he provided information to answer the questions

the state had asked during the first proffer; the state asked

additional questions at the second proffer and confirmed

that Layman was still housed with defendant; and, in his

420 State v. Benton

letters, Layman set out the relationship he believed he had

with the state and how valuable his information was to the

state.

In addition, defendant argues that Layman made

it clear in his third proffer that he had sought to obtain

information from defendant on the state’s areas of inter-

est by asking defendant direct questions in those areas, as

revealed by the state’s questions during the prior proffers.

Defendant also argues that Wentworth’s prepping Layman

on the law of agency before the motion to suppress hearing

is relevant because it reveals the extent of the relationship

between Layman and the state and the state’s expectations

by the time of the third proffer.

Finally, in a second alternative, defendant argues

that Layman became a state actor no later than July 6,

2015, “when the state collaborated with Layman to ensure

a setover in [Layman’s] Clackamas County drug case.”

Defendant argues that, by that time, the CCDA was work-

ing with Layman, prolonging its ability to provide him a

benefit in his Clackamas County case and to try to persuade

Multnomah County to settle with Layman.

The state responds that, because state officials

never asked Layman to ask defendant questions, Layman

was never an agent of the state and, thus, the protections

under Article I, sections 11 and 12, were never triggered.

That is, the state argues, because the state never made an

objective manifestation that authorized Layman to act on

its behalf, Layman was not a state agent. The state argues

that the state officials warned Layman that the state was

not requesting that he ask defendant any questions, did not

encourage Layman to meet with defendant, did not sug-

gest topics for Layman to explore with defendant, and did

not agree to any terms of a cooperation agreement. The

state argues that the inferences defendant argues should

be made from the circumstances are contrary to the find-

ings made by the trial court. The state asserts that at no

point while Layman was talking with defendant did the

state create an impression that Layman was its agent or

that it had an agreement with Layman. Similarly, the state

argues that Layman was not a state agent for purposes of

Cite as 317 Or App 384 (2022) 421

the Sixth Amendment, because the state did not take any

action beyond listening to Layman; that is, the state did not

instruct or make an agreement with Layman to ask defen-

dant any questions.

We first address the issue under the state constitution.

C. Analysis under the Oregon Constitution

1. Applicable law

Before addressing defendant’s fact-based arguments,

we begin with a discussion of the applicable law under

Article I, section 11.3 Here, the parties disagree on the pre-

cise test we must apply to determine if Layman’s conduct

can be attributed to the state, such that his questioning of

defendant was a violation of defendant’s right to counsel

and against self-incrimination. Defendant argues that we

apply solely the test articulated in Smith and Lowry, and

that the Supreme Court’s more recent opinion in Sines does

not apply. Defendant urges us not to apply the reasoning in

Sines, because it was decided under Article I, section 9, of

the Oregon Constitution and not Article I, section 11, which

has different considerations at play, particularly in the jail-

house informant context, due to the leverage the state has

to provide benefits to those informants. The state for its part

urges us to apply the common-law agency principles inform-

ing the court’s decision in Sines to determine if Layman was

acting at the behest of the state in this case. To resolve the

tension in the parties’ arguments, we examine the applica-

ble case law.

Under Article I, section 11, “[i]n all criminal prose-

cutions, the accused shall have the right * * * to be heard by

himself and counsel.” “After a defendant has been charged

with a crime and the right to counsel has attached, Article I,

section 11, of the Oregon Constitution prohibits the police

from asking the defendant about that crime without first

notifying his or her lawyer.” State v. Prieto-Rubio, 359 Or

16, 18, 376 P3d 255 (2016). The remedy for an Article I,

3

Defendant also argues that Article I, section 12, applies here. However,

defendant does not make a separate argument under that section, which applies

when a defendant is questioned by the state under compelling circumstances. As

a result, we only address Article I, section 11.

422 State v. Benton

section 11, violation is to exclude from trial “any prejudicial

evidence obtained as a result of that violation.” Id. at 38. It

is axiomatic that constitutional rights protect a defendant

from state action. So, the question in the context of a jail-

house informant questioning a defendant about a criminal

charge is whether the informant is acting at the behest of

the state.

In Smith, the Oregon Supreme Court adopted the

rule that we established in Lowry to determine whether

a jailhouse informant is a “police agent” such that state-

ments made by the defendant to the informant are subject

to exclusion under Article I, section 11. That rule provides

that, “if the police were directly or indirectly involved to a

sufficient extent in initiating, planning, controlling or sup-

porting the informant’s activities, the exclusionary protec-

tion would apply.” Smith, 310 Or at 13 (internal quotation

marks and brackets omitted). The inquiry requires each

case to be evaluated on its own facts. Id. Applying that fact-

intensive inquiry, the court concluded that the defendant’s

statements in that case were not subject to the exclusion-

ary rule, because the officials in the case “made no deals

with [the informant], paid him no money, and offered him

no encouragement; nor did [the informant] request any.”

Id. at 14.

In Lowry, we articulated that rule based on federal

precedent in Massiah v. United States, 377 US 201, 84 S Ct

1199, 12 L Ed 2d 246 (1964), and McLeod v. Ohio, 381 US

356, 85 S Ct 1556, 14 L Ed 2d 682 (1965). Lowry, 37 Or App

at 650 (“The only substantial issue in this case is whether

there was sufficient official police involvement in [the infor-

mant’s] obtaining of any of the statements from defendant

to bring into play the exclusionary protection of the Fifth

Amendment.”). We emphasized that “ ‘[t]he extent of official

involvement in the total enterprise is the crucial element.’ ”

Id. at 652 (quoting State v. Becich, 13 Or App 415, 419, 509

P2d 1232 (1973)). Examining closely the extent of official

involvement in the informant’s obtaining statements from

the defendant, we concluded that many of the defendant’s

statements were not subject to suppression. However, once

official involvement became sufficient—which included giv-

ing positive encouragement to the informant and delaying

Cite as 317 Or App 384 (2022) 423

a transfer of the informant to get a taped statement, which

enabled the informant on his own initiative to obtain more

detailed information from the defendant—we concluded

that the defendant’s statements made to the informant after

the date of sufficient involvement must be suppressed. Id. at

655-56.

More recently, the Oregon Supreme Court has

addressed when a private citizen becomes a “police agent”

such that suppression of evidence derived from a search by

that private citizen is necessary. In Sines, a housekeeper sus-

pected that her employer was sexually abusing his child in

the home. After speaking to an employee of the Department

of Human Services (DHS), the housekeeper took items of the

child’s clothing from the home and turned them over to the

police so that they could be tested for the presence of semen.

Defendant sought suppression of evidence obtained through

the search and seizure of the clothing under Article I, section 9,

arguing that the housekeeper was acting at the behest of

the state when she seized the clothing. 359 Or at 43, 47.

In determining what type of state involvement was

necessary such that the private person could be “said to be

acting on behalf of government in some sense,” the court

started with Smith, as “confront[ing] a similar issue.” Id. at

53. The court noted that Smith followed an agency analysis

and looked at whether the officers were involved to a suffi-

cient extent such that the informant “could be described as

having acted ‘at the behest’ of the state.” Id. at 54 (quoting

Smith, 310 Or at 15). The court noted that other courts have

used agency analysis in the search and seizure context. The

court then concluded that “common-law agency principles

can provide substantial assistance in determining when

a private citizen’s search or seizure should be considered

state action for purposes of Article I, section 9,” and adopted

the use of such principles to determine whether a private

actor should be considered a state agent for purposes of

Article I, section 9. Id. at 55, 59. The court formulated the

test as whether the facts of the case, “and in particular the

conduct and statements of the state officials, demonstrate

that those officials communicated to the housekeeper (and

[the] defendant’s other employee) that they were autho-

rized to act as agents of the state.” Id. at 59. That analysis

424 State v. Benton

“looks first to objective manifestations by the principal to

the agent that the agent should or may act on behalf of the

principal.” Id. Because there was not sufficient “affirmative

encouragement, initiation, or instigation” in the case on the

facts as found by the trial court, the court determined that

the housekeeper was not acting as a state agent when she

searched for and seized the clothing. Id. at 60-61.

Because the court in Sines repeatedly tied its

analysis to searches and seizures under Article I, section 9,

defendant argues that its reasoning does not apply in this

case, which involves Article I, section 11. Although it is not

entirely clear that the Supreme Court would apply Sines

to Article I, section 11, and specifically in the context of a

jailhouse informant, we also cannot ignore that the court

started its reasoning in Sines from the “similar issue” raised

in Smith, which the court read as applying agency analysis

in that context. Also, we do not read Sines to articulate a

test that is dramatically different from Smith or Lowry.

Both Smith and Lowry explained that the exclusionary

rule applies only if the informant was operating as a police

agent, which requires a fact-intensive inquiry of the official

involvement in obtaining statements from the defendant.

While those cases did not specifically state that they were

drawing on common-law concepts of agency, they did focus

on the objective statements and conduct of the actors, which

also was the focus in Sines. Under both Smith and Sines,

the Supreme Court articulated a test that asks whether the

private person was acting as a state agent, and the reasons

articulated in Sines for focusing on objective manifestations

(such as affirmative encouragement, initiation, or instiga-

tion) from the government actors apply equally to a jail-

house informant.

However, in making that observation, we disagree

with the state’s assertion that Sines requires us to apply

a common-law agency test here. Sines stated only that

common-law agency principles can provide assistance in the

search and seizure context, not that a strict application of

those principles is required. Sines also did not overrule or

abrogate Smith, despite expressly acknowledging the test

that Smith sets out for determining whether a jailhouse

informant qualifies as a state agent.

Cite as 317 Or App 384 (2022) 425

We thus conclude that all three cases—Smith,

Lowry, and Sines—inform our analysis here. Smith and

Lowry provide significant guidance on the totality of state

involvement that is sufficient to trigger constitutional exclu-

sionary protections when a jailhouse informant questions

a represented defendant, and Sines informs that we must

focus on objective statements and conduct and not on private

motivations of the state or the informant. With that under-

standing, we turn to the application of those legal principles

in this case.

2. Application of Smith, Lowry, and Sines in this case

First, we readily conclude that Layman was not

acting as a state agent in questioning defendant either

before or after the first proffer. Before Layman directed his

attorney to contact the CCDA, the CCDA was not aware of

Layman or that he had been talking to defendant. The mere

fact that Layman had worked as a jailhouse informant on

prior occasions did not make him a police agent with respect

to defendant. See Lowry, 37 Or App at 653 (rejecting such

reasoning). At that point, there was no objective manifesta-

tion by the state that gave Layman any encouragement or

authority to question defendant.

State involvement was also insufficient following

the first proffer. Although there was some state involve-

ment at that point, including a video-taped proffer with

several prominent members of the investigation team pres-

ent, indicating their interest in the information, there was

no discussion whether Layman would receive a benefit in

return for that information, even though he indicated that

he expected a benefit. Layman’s past success at obtaining a

benefit for his informant activities did not create sufficient

state involvement in Layman’s questioning of defendant to

make him a state agent at that point. See Lowry, 37 Or App

at 653 (“[P]ast episodes [of receiving benefits for informing

on other inmates] did not constitute sufficient involvement

in Reed’s self-initiated interrogation of defendant to bring

into play the exclusionary protection.”).

Schmautz also admonished Layman that the

state was not directing him to ask defendant any ques-

tions. We note that Schmautz somewhat contradicted that

426 State v. Benton

admonishment by telling Layman that he should tell his

attorney, for the purpose of contacting the CCDA, “if there’s

anything that you remember that you need—that you think

that we do need to know to make an informed decision.” The

reasonable inference conveyed by that direction is that the

CCDA was considering whether to give Layman a benefit in

return for his information, and that the CCDA was open to

receiving additional information from Layman to make a

decision about whether to give Layman a benefit. However,

at that point, there were little to no objective manifestations

from the state that positively encouraged Layman to con-

tinue questioning defendant.

The more difficult question that this case raises

is whether Layman became a state agent after the sec-

ond proffer on July 2, 2015. The level of state involvement

in Layman’s questioning of defendant shifted significantly

after the second proffer, which began as negotiations to give

Layman a benefit in return for his testimony against defen-

dant. Layman was expecting significant assistance with his

open sentencing in his Multnomah County case, but had not

been offered any such assistance by the CCDA. At that point,

Layman told Schmautz and the others present that he had

additional information on defendant. Schmautz took that

information immediately, using a back-up audio recorder,

instead of setting up a more formal proffer arrangement, as

had occurred with the first proffer, indicating the CCDA’s

willingness to obtain more information about defendant

through Layman. The information that Layman provided

showed that he had shifted his approach (recording the dates

of conversations with defendant) and focused on topics that

the state was interested in (details on how the victim died and

the roles of Campbell, Jaynes, and defendant in the murder)

in response to questions raised by Schmautz and Sudaiser

during the first proffer. Schmautz again asked questions of

Layman that focused on particular areas of interest. Layman

also explained that he was questioning defendant—that he

was not just passively receiving the information. However,

no one from the state told Layman to cease questioning

defendant. Instead, Schmautz said, again, after confirming

that Layman and defendant were still housed together, that

they were not “directing” Layman to question defendant.

Cite as 317 Or App 384 (2022) 427

At that point in the relationship between the state

and Layman, the state was positively encouraging Layman

to continue to question defendant through objective mani-

festations of assent to Layman’s activities, including secur-

ing his presence for in-person negotiations to obtain his tes-

timony against defendant, receiving additional information

on defendant after those negotiations stalled, and asking

about additional topics after Layman successfully obtained

information on topics the state had previously asked about

in the first proffer. The state was involved in serious nego-

tiations with Layman to give him a benefit in return for his

information and, when it offered a deal to Layman that was

significantly less than what Layman sought, he was incen-

tivized to obtain more information from defendant to make

a deal happen. Compare Smith, 310 Or at 14-15 (no positive

encouragement of the informant where the informant ini-

tiated contact with police deputies, the deputies instructed

the informant not to question the defendant, the informant

did not question the defendant, only listened, the informant

did not ask for a deal and none was offered, and the infor-

mant did not know before his sentencing that the deputies

would speak on his behalf), and Lowry, 37 Or App at 654-55

(the exclusionary rule did not apply where a detective told

the informant that he was not interested in information on

the defendant and that the informant should not be asking

questions of any inmate), with Lowry, 37 Or App at 655-56

(positive official encouragement for additional incriminating

statements did occur when a different detective expressed

interest in information on the defendant, attempted to

obtain a recorded statement from the informant, and failed

to discourage the informant from questioning the defendant

further after the informant’s attempt to negotiate for a ben-

efit in return failed).

Although we are focused on the state’s affirmative

actions, see Sines, 359 Or at 61-62 (failing to discourage

private conduct is not sufficient to bring a private search

within the scope of Article I, section 9), we do take some

account of the fact that the state also did not in any way

discourage Layman’s activities, after giving him positive

encouragement and an incentive to continue those activities.

Here, Schmautz only said that the state was not “directing”

428 State v. Benton

Layman to question defendant; however, Layman made

clear that he was continuing to do so—confirming that he

was the initiator of the information-gathering conversations

with defendant—after the first time that Schmautz made

the same admonishment following the first proffer. The state

had no reason to believe that Layman would behave any dif-

ferently upon hearing that carefully worded admonishment

again, particularly in light of the willingness of the CCDA

to receive more information on defendant from Layman in

the posture of ongoing negotiations with him.

In sum, on or by July 2, Layman understood from

CCDA that the level of assistance CCDA was offering for

the sentencing in his cases depended on the quality of

information that he obtained from defendant. The state’s

actions assented to that understanding. That understand-

ing between Layman and the CCDA was further confirmed

when Layman immediately laid the groundwork with

defendant on July 3, the day after the second proffer, to

ask defendant even more pointed questions about his case

and the murder. In so concluding, we are not making fac-

tual inferences that are contrary to the trial court’s find-

ings, as the state argues would be necessary. Rather, we

reach a different legal conclusion based on the facts found

by the trial court, because, in our view, the factual distinc-

tions that the court observed between this case and Lowry

do not make this case legally distinguishable. By July 2, the

totality of the state’s involvement in Layman’s activities of

questioning defendant about the murder of the victim was

sufficient to trigger the state constitutional exclusionary

protections.

The state argues, relying on Sines, that, because

state officials never asked Layman to question defendant,

Layman was never an agent of the state and, thus, the pro-

tections under Article I, section 11, were never triggered.

That argument ignores the objective manifestations of pos-

itive encouragement that the state did provide to Layman

by the time of the second proffer, instead focusing solely on

whether the state directed Layman to ask questions. Sines

does not require such a specific manifestation of assent to an

informant’s activities. If it did, then it would undermine the

protections of the exclusionary rule, because it would allow

Cite as 317 Or App 384 (2022) 429

the state to provide all the hallmarks of positive encourage-

ment and assistance in a jailhouse informant’s activities,

but avoid any consequences of that relationship merely by

stating that the state is not requesting the informant to ask

questions, even while the state’s actions encourage the infor-

mant to ignore that statement, as both the state and the

informant readily understand.

We conclude that, by the end of the second proffer,

official involvement in Layman’s questioning of defendant

was sufficient to bring the constitutional exclusionary pro-

tection into effect for purposes of Article I, section 11, and

any statements made by defendant to Layman after July 2,

2015, must be suppressed. However, because the informa-

tion obtained by Layman was clearly delineated by the dates

on which it was obtained through the recorded proffers, we

reject defendant’s argument that all of defendant’s state-

ments must be suppressed on the basis that it is imprac-

ticable to separate the admissible from the inadmissible

statements.

We also conclude that the error in not suppress-

ing the statements defendant made to Layman after the

meeting on July 2 is not harmless. It is after that meeting

that Layman sought out specific information from defen-

dant and obtained several details about the conspiracy and

murder, including that Campbell and Jaynes attempted to

overdose the victim with the victim’s prescription Fentanyl

and that Campbell was “a couple months off” on the date,

details about the original murder plan and how it fell apart,

Jaynes’s role in the murder, the compensation defendant

promised to Campbell, and defendant’s motive.

Accordingly, we reverse and remand defendant’s

conviction on Counts 1, 2, 6, and 7.

D. Analysis under the United States Constitution

Because we conclude that the statements defendant

made to Layman before the July 2 meeting are admissi-

ble under the Oregon Constitution, we briefly address and

reject defendant’s arguments under the Sixth Amendment

with respect to those statements.

430 State v. Benton

“[T]he Sixth Amendment is violated when the State

obtains incriminating statements by knowingly circum-

venting the accused’s right to have counsel present in a con-

frontation between the accused and a state agent.” Maine

v. Moulton, 474 US 159, 176, 106 S Ct 477, 88 L Ed 2d 481

(1985). The question is whether, under the facts of the case,

a government agent “deliberately elicited” incriminating

statements from the defendant. Henry, 447 US at 270. Or,

in other words, whether the government “intentionally cre-

ate[ed] a situation likely to induce [the defendant] to make

incriminating statements without the assistance of coun-

sel.” Id. at 274.

Defendant argues that, under Henry, his Sixth

Amendment right to counsel was violated because defen-

dant’s statements were “deliberately elicited” by Layman and

that conduct is attributable to the government. Defendant

argues that, for the same reasons as stated with respect to

the state constitution, his statements to Layman should be

suppressed under the Sixth Amendment.

For the same reasons that we reject defendant’s

arguments under the Oregon Constitution with regard to

the statements that he made to Layman before July 2, we

reject defendant’s arguments under the Sixth Amendment.

IV. IN CAMERA REVIEW OF

GUYTON’S RECORDS

We also address defendant’s sixth assignment

of error, because it raises an issue of law that is likely to

arise on remand, and we determine that it is appropriate

to do so. State v. Savage, 305 Or App 339, 342, 470 P3d 387

(2020) (“Ordinarily, we will consider issues likely to arise

on remand when the trial court or agency has determined

a question of law that will still be at issue after the case is

remanded.”); see also State v. Merrill, 309 Or App 68, 71, 481

P3d 441, rev den, 368 Or 402 (2021) (“Even when a disposi-

tion obviates the need to address an assignment of error, we

may nevertheless address questions of law that may still be

at issue after the case is remanded.”).

In his sixth assignment, defendant argues that the

trial court erred when it refused to conduct an in camera

Cite as 317 Or App 384 (2022) 431

review of records of a mental health evaluation of Layman

that Guyton conducted in 2014. The trial court’s refusal was

based on its conclusion that defendant did not make a suf-

ficient threshold showing for such a review. We review that

issue for legal error, and we are bound by the trial court’s

factual findings, if supported by the record. State v. Cockrell,

284 Or App 674, 682, 395 P3d 612, rev den, 361 Or 886 (2017).

As explained, we conclude that the trial court did not err.

A. Factual and Procedural Background

Because defendant’s arguments with respect to

Guyton’s records shifted over time and were made at sev-

eral points pretrial and at trial, we set out with some detail

the procedural history of his in camera request.4 In 2014,

Layman was being held on charges of identity theft and

criminal trespass in Multnomah County. During that time,

he was making calls to his girlfriend, which were recorded.

In May 2014, he told his girlfriend that his attorney had

retained a doctor to give him a 600-question evaluation to

use for his sentencing. Guyton, a forensic psychologist, con-

ducted the evaluation of Layman. In June, Layman told his

girlfriend that his attorney could not use the evaluation,

because Guyton had told the attorney that, “if she tells them

what I said in our interview, * * * the next time I catch a fel-

ony they will never let me out of prison, ever.” In July 2014,

Layman pleaded guilty to the charges and his attorney did

not disclose the evaluation.

Before defendant’s trial, in 2016, he subpoenaed the

Oregon Youth Authority, Multnomah County Corrections

Health, and the Washington Department of Corrections for

Layman’s medical and mental health records and obtained

those records. Defendant also subpoenaed Guyton to produce

4

Defendant’s assignment of error fails to identify the specific trial court rul-

ing that he challenges; instead he assigns error to a legal issue, on which the trial

court made several rulings, both pretrial and during trial. That manner of brief-

ing does not conform with ORAP 5.45(3), and it impedes our review, as both the

record and defendant’s arguments were different with respect to each trial court

ruling. See, e.g., Wingett v. Silbernagel, 279 Or App 245, 252, 379 P3d 570, rev den,

360 Or 697 (2016) (“An assignment of error does not comply with ORAP 5.45(3) if

it assigns error to what is essentially a legal conclusion and not a specific ruling.”

(Internal quotation marks omitted.)). However, under the circumstances of this

case, we deem it appropriate to address the merits of defendant’s assignment as

to the precise arguments that defendant raises in his opening brief.

432 State v. Benton

her records relating to Layman. Layman moved to quash

that subpoena based on attorney-client privilege, and Guyton

asserted the psychotherapist-patient privilege at the hear-

ing on Layman’s motion. In response, defendant argued that

Layman had waived those privileges and, in the alternative,

requested that the trial court review the records in camera

for disclosure of relevant evidence.

At the hearing, defendant presented witnesses in

support of his waiver argument, including Detective

Sudaiser and Sergeant Edwards, who had met with Layman

in January 2016. According to the witnesses, at that meet-

ing, Layman told them that he had had inconsistent men-

tal health diagnoses, including that he had, at one time,

been diagnosed with ADHD and bipolar disorder, but other

psychologists had disagreed with those diagnoses. He also

was, at one time, diagnosed with depression and anxiety.

Layman specifically told them that Guyton’s records had

been subpoenaed by defendant and he did not want them

released. Defendant argued that he was entitled to all of

the records, but, for purpose of in camera review, he was

entitled to impeachment evidence related to Layman’s

lying, drug use, violence—in particular violence toward

women—and his ability to accurately perceive, recall, and

relate events. Before the trial court ruled on that motion,

defendant also filed a motion to compel the state to disclose

Guyton’s records, reasoning that the state’s failure to obtain

those records was essentially consideration to Layman in

exchange for his cooperation.

The trial court granted Layman’s motion to quash,

concluding that he had not waived the attorney-client privi-

lege. The court also concluded that defendant “failed to show

sufficient evidence to support a reasonable belief that an

in camera review may yield evidence establishing an excep-

tion to the nondisclosure or the privilege.” The court found

that there was no evidence that the various diagnoses

Layman disclosed he had received—bipolar disorder, depres-

sion, ADHD, or anxiety—“would, in and of themselves, sug-

gest * * * Layman was fabricating the story to the State.”

The court also found that there was “no evidence that these

Cite as 317 Or App 384 (2022) 433

diagnoses were made by Dr. Guyton,” and that, “frankly, I

believe it’s a fishing expedition.”

With regard to defendant’s motion to compel, the

trial court issued a letter opinion denying the motion. The

trial court found and concluded:

“In this motion, [defendant] argues because of * * *

Layman’s statements [saying the evaluation would ‘hurt

him’ if it were to ‘get out,’] the Guyton evaluation has

become consideration to the agreement between the State

and * * * Layman because the State has failed to obtain

control of the materials or subpoenaed them which may

have been used by the State in the pending open sentenc-

ing in Multnomah County. There is no evidence to support

this position. [Defendant] further argues that the records

are within the State’s control because of the Cooperation

Agreement between the State and * * * Layman.

“The Court has already ruled that the Cooperation

Agreement between the State and * * * Layman does not

extend to mental health records that * * * Layman has spe-

cifically refused to release to the State. * * * Layman has

NOT given up his privilege to those records, his doctor

refused to release the records without his permission, law

enforcement has asked for them, and is not required to con-

tinue to ask for them. They are not within State control.”

(Uppercase in original.)

Defendant then moved for reconsideration of the

trial court’s refusal to conduct an in camera review of

Guyton’s records for material impeachment evidence, based

on a then-newly-issued case, State v. Lammi, 278 Or App

690, 75 P3d 547, adh’d to as clarified on recons, 281 Or App

96, 380 P3d 1257 (2016), rev den, 360 Or 697 (2017). At

the hearing, defendant referred to additional items of evi-

dence that had been admitted during defendant’s motion

to suppress hearing with respect to statements he made

to Layman—specifically, evidence that Layman wrote to

Wentworth during the time that he was negotiating with

the CCDA, expressing anger that a Clackamas County

district attorney had brought up dangerous offender sen-

tencing in his Multnomah County case, and that Layman

had made a statement in May 2016 to his mental health

case manager that he had been diagnosed with antisocial

434 State v. Benton

personality disorder earlier in the year and that he does not

agree with the diagnosis. Defendant argued that Guyton’s

records would contain material impeachment evidence

related to Layman’s motivation and bias, because the evalu-

ation might have made Layman believe that he was suscep-

tible to dangerous offender sentencing, such that Layman

would be “trying to appease” the Clackamas County district

attorneys in his three proffers.

The trial court denied that request, concluding

that Lammi did not change the state of the law governing a

trial court’s in camera review of documents. The trial court

reaffirmed its ruling that defendant had not made a thresh-

old showing for in camera review. The court also concluded

that the state not obtaining Guyton’s records was not some

form of consideration, because the records were protected

by the attorney-client privilege, Layman’s attorney did not

use the evaluation, and the evaluation was not available to

the state; thus, Layman “didn’t need the Clackamas County

District Attorney’s help in avoiding the consequences of the

report because there were NO consequences.” (Uppercase in

original.)

At trial, after the state finished its direct examina-

tion of Layman, defendant moved for reconsideration of a

prior ruling of the trial court that restricted defendant’s use

of Layman’s mental health records, arguing that he should

be permitted to ask Layman about his mental health prob-

lems, as documented in his mental health records, because

the state’s examination opened the door. The trial court

permitted questions about Layman’s criminal and drug his-

tory, but ruled that defendant could not ask about Layman’s

mental health history or drugs to treat his mental health,

with the exception that the trial court permitted defendant

to cross-examine Layman about his mental health history

related to his ability to remember. After obtaining that rul-

ing, defendant sought reconsideration of its motion to compel

production of Guyton’s records, arguing that Layman had

waived any privilege. The trial court denied that motion.

During the cross-examination of Layman, defen-

dant again renewed his request to obtain Guyton’s records

and his request for the trial court to conduct an in camera

Cite as 317 Or App 384 (2022) 435

review of them. Defendant argued that he did not know what

type of report it was, but believed that it was an evaluation

relevant to Layman’s dangerous offender status. The trial

court denied the renewed motion and declined to review the

records in camera, on the same basis as previously litigated.

B. Analysis under Federal Due Process

On appeal, defendant assigns error to the trial

court’s refusal to conduct an in camera review of Guyton’s

records for material impeachment evidence. Defendant’s

argument is based on federal due process, as discussed in

Brady v. Maryland, 373 US 83, 83 S Ct 1194, 10 L Ed 2d 215

(1963), and Pennsylvania v. Ritchie, 480 US 39, 107 S Ct 989,

94 L Ed 2d 40 (1987). Under Brady, to comply with federal

due process, the state must disclose to a defendant all evi-

dence in its possession or control that is material and favor-

able to the defense. State v. Bray, 363 Or 226, 236, 422 P3d

250 (2018). And, under Ritchie, the state may be required to

assist a defendant in obtaining Brady material from third

parties in certain circumstances, such as by requiring the

court to enforce a defendant’s subpoena. See Bray, 363 Or at

237-38 (discussing Ritchie); see also Ritchie, 480 US at 57-58

(affirming remand for the trial court to conduct in camera

review of subpoenaed records for Brady material, which

were privileged under state statute).

“To establish that a defendant’s due process rights

were violated by a trial court’s failure to conduct an in cam-

era review [of confidential records,] the defendant must first

‘demonstrate that the items of which he sought review would

have been material and favorable to his defense.’ ” State v.

Covington, 291 Or App 514, 518, 422 P3d 276, rev den, 363 Or

727 (2018) (quoting Cockrell, 284 Or App at 689). “Evidence

is favorable to a defendant if it is exculpatory or if it could be

used to impeach a government witness.” Id. at 517. “Material

evidence is evidence that is not merely relevant but, rather, is

evidence that ‘has a “reasonable probability” of affecting the

outcome of the proceeding.’ ” Id. (quoting State v. West, 250

Or App 196, 204, 279 P3d 354 (2012)). The defendant must

also show “that it is reasonable to believe that the [records]

contain that evidence.” Id. at 518; see also Ritchie, 480 US

at 58 n 15 (“Ritchie, of course, may not require the trial

436 State v. Benton

court to search through the [Children and Youth Services]

file without first establishing a basis for his claim that it

contains material evidence. See United States v. Valenzuela-

Bernal, 485 US 858, 867, 102 S Ct 3440, 3446, 73 L Ed 2d

1193 (1982) (‘He must at least make some plausible showing

of how their testimony would have been both material and

favorable to his defense.’)).” Thus, with regard to defendant’s

request that the trial court conduct in camera review of the

privileged Guyton records, defendant was required to first

make the threshold showing that it is reasonable to believe

that those records contain Brady material.

Defendant argues that he made that threshold

showing, because it was plausible that Guyton’s records

contained material impeachment evidence. He argues that,

based on Layman’s statements to his girlfriend, there was

evidence that Layman took a 600-question evaluation that,

if revealed to the state, would expose him to a lengthy

prison sentence. He also argues that, based on Layman’s let-

ter to Wentworth, there was evidence that the state threat-

ened to charge Layman as a dangerous offender if he did

not testify against defendant and, based on the 2016 state-

ment by Layman that he had been diagnosed with antiso-

cial personality disorder, that it was likely that Guyton’s

evaluation showed that he had antisocial personality dis-

order or another disorder that qualified him as a danger-

ous offender. Because a dangerous offender sentence would

have exposed Layman to an indeterminate 30-year prison

term, defendant argues, an evaluation showing Layman

qualified for such sentencing “would constitute qualitatively

unparalleled evidence of Layman’s bias or interest to tes-

tify falsely against defendant.” Defendant also argues that

Guyton’s records would show Layman’s inability to perceive,

understand, and recall, which is material impeachment

evidence.

The state responds that defendant did not make

a sufficient showing. The state argues that defendant was

required to show that Guyton’s records contained material

that was constitutionally required to be disclosed, despite

their privileged nature, based on fundamental fairness. The

state argues that defendant did not do that here, because

Cite as 317 Or App 384 (2022) 437

the trial court found that Layman’s cooperation agreement

with the state had nothing to do with his mental health

records, and Guyton’s evaluation was not likely to be used

to increase Layman’s sentence. In addition, the state argues

that defendant did not make a plausible showing that the

records would reveal information about Layman’s ability

to perceive or remember or a motive to lie. Thus, the state

argues that the trial court did not err in concluding that

defendant failed to make a plausible showing to support an

in camera review of Guyton’s records.

We first address defendant’s arguments as they

relate to Layman’s exposure to dangerous offender sentenc-

ing. The record supports the trial court’s finding that Layman

“didn’t need the Clackamas County District Attorney’s help

in avoiding the consequences of the report because there

were NO consequences.” (Uppercase in original.) The only

evidence in the record pertaining to dangerous offender

sentencing, as it related to Layman’s agreement to testify,

was Layman’s assertion in a letter to Wentworth that a

Clackamas County district attorney had asserted in a meet-

ing with a Multnomah County Judge and district attorney

that defendant could be sentenced as a dangerous offender—

a meeting, the record also reveals, that Layman did not

attend. There was no evidence that dangerous offender

sentencing was ever contemplated by the judge or district

attorney in Multnomah County—the only evidence in that

regard was from the Multnomah County district attorney,

who testified that it was decided early on that dangerous

offender sentencing would not be sought. See 317 Or App

at 416-17 (describing evidence introduced at state agent

hearing). And, it is undisputed that the state did not, in any

event, have access to Guyton’s evaluation to use it against

Layman. In that context, defendant did not make any show-

ing how Guyton’s records could be used to impeach Layman

or were otherwise relevant to the defense. That is, defendant

did not show a rational relationship between what defendant

believes is in Guyton’s records and Layman’s bias or motive

to testify for the state pursuant to his cooperation agree-

ment with Clackamas County. See State v. Naudain, 368

Or 140, 150, 487 P3d 32 (2021) (the relevance of impeach-

ment evidence to show bias requires “a rational relationship

438 State v. Benton

between the [bias] issue and the proffered evidence”); see

also State v. Guffey, 291 Or App 729, 737-38, 422 P3d 293

(2018) (a threshold showing of materiality for DHS records

was not made under the defendant’s theory, where the defen-

dant failed to show how they could be used to cross-examine

the witness or were otherwise relevant to the theory of the

defense). Thus, it is not reasonable to believe, based on any

argument that relies on exposure of Layman to dangerous

offender sentencing, that Guyton’s records contain informa-

tion that is material and favorable to defendant’s defense.

With regard to defendant’s secondary argument,

that Guyton’s records would contain material impeachment

evidence related to Layman’s ability to perceive, understand,

and recall, we conclude that Layman did not make a thresh-

old showing for in camera review. Defendant did not make

any showing that it is reasonable to believe that Guyton’s

records were qualitatively different in what they would show

about Layman’s ability than the other mental health records

that defendant did obtain.5 Defendant admitted below that

he did not know what type of report Guyton had made, but

surmised that it was related to Layman’s potential danger-

ous offender status. However, defendant made no showing

as to the relationship between a dangerous offender evalua-

tion and Layman’s ability to perceive, understand, or recall.

See Guffey, 291 Or App at 738 (court did not err in refusing

to review school records in camera where defendant did not

make a threshold showing that the records contained qual-

itatively different information than what defendant already

possessed). Cf. Covington, 291 Or App at 520 (the defendant

made threshold showing that it was plausible that grand

jury notes would disclose material impeachment of a wit-

ness that was a different type of evidence than defendant

used to impeach the witness). Defendant did not make a suf-

ficient showing that it is reasonable to believe that Guyton’s

records contain information that is material and favorable

to defendant’s defense.

5

Defendant asserts in his briefing that the other mental health records dis-

closed drug use, medical history, and mental health history with a reported effect

on Layman’s ability to perceive, understand, and recall. The trial court permit-

ted defendant to cross-examine Layman about his mental health history related

to his ability to remember.

Cite as 317 Or App 384 (2022) 439

Accordingly, the trial court did not err in refusing

to conduct an in camera review of Guyton’s records.

V. CONCLUSION

In sum, we conclude that the trial court did not err

in rejecting defendant’s challenges based on the variances

in proof at trial from the indictment. However, we conclude

that Layman was acting as a state agent when he ques-

tioned defendant about his pending charges after July 2,

2015. The trial court erred in not granting defendant’s

motion to suppress the statements he made to Layman after

that date. Because that error was not harmless, we reverse

and remand defendant’s conviction on Counts 1, 2, 6, and 7.

Further, we reverse defendant’s conviction on Count 8,

because the trial court granted defendant’s post-judgment

motion to dismiss that count, but did not enter a corrected

judgment reflecting that dismissal. Finally, we consider

and reject defendant’s sixth assignment of error, concluding

that the trial court did not err in refusing to conduct an

in camera review of Guyton’s records.

Conviction on Count 8 reversed; conviction on

Counts 1, 2, 6, and 7 reversed and remanded; otherwise

affirmed.