State v. Oatney

555

Argued and submitted January 13, order of circuit court affirmed April 21, 2022

STATE OF OREGON,

Appellant,

v.

BILLY LEE OATNEY, JR.,

Respondent.

(CC 18CR70058) (SC S068761)

508 P3d 482

Defendant had been convicted of aggravated murder and sentenced to death.

During its initial investigation of the murder, the state gave defendant contrac-

tual use and derivative use immunity in exchange for providing information

about the circumstances of the murder. The state then shared part of defendant’s

immunized statement with an associate, Johnston. As a result, Johnston pro-

vided the state with additional information about the murder, pleaded guilty to

the crime, and testified against defendant in his first trial for aggravated mur-

der. Following defendant’s conviction and sentencing, he obtained post-conviction

relief, and a remand for further proceedings, on the ground that his trial counsel

had been inadequate for failing to move to suppress Johnston’s statements and

testimony, which had derived from defendant’s immunized statement. At defen-

dant’s retrial, the trial court entered a pretrial order that, among other things,

precluded the state from calling Johnston to present testimony that violates

defendant’s immunity agreement if defense counsel makes certain statements

and arguments within the limits of the law and evidence presented. The state

appealed the trial court’s pretrial order under ORS 138.045, which permits the

state to directly appeal pretrial orders suppressing evidence when the defendant

is charged with murder or aggravated murder. Held: (1) ORS 138.045 permitted

the state’s appeal, because the challenged aspect of the order precluded the state

from calling Johnston as a witness in certain circumstances; and (2) the trial

court did not err in ruling that, within the law and evidence presented, defense

counsel may argue in opening or closing statements that Johnston or someone

other than defendant had committed the crime or that the state has not proved

beyond a reasonable doubt that defendant committed the crime, without opening

the door to permitting the state to call Johnston to present testimony that vio-

lates defendant’s immunity agreement.

The order of the circuit court is affirmed.

On appeal from an order of the Washington County

Circuit Court under ORS 138.045(2) and ORAP 12.07.*

Timothy A. Sylwester, Assistant Attorney General, Salem,

argued the cause and filed the briefs for appellant. Also on

______________

* Beth L. Roberts, Judge.

556 State v. Oatney

the briefs were Ellen F. Rosenblum, Attorney General, and

Benjamin Gutman, Solicitor General.

Richard L. Wolf, Richard L. Wolf PC, Portland, argued

the cause and filed the briefs for respondent.

Before Walters, Chief Justice, and Balmer, Flynn, Nelson,

and Garrett, Justices, and Linder and Landau, Senior

Judges, Justices pro tempore.**

BALMER, J.

The order of the circuit court is affirmed.

______________

** Duncan and DeHoog, JJ., did not participate in the consideration or deci-

sion of this case.

Cite as 369 Or 555 (2022) 557

BALMER, J.

Defendant was convicted of aggravated murder and

sentenced to death. State v. Oatney, 335 Or 276, 66 P3d 475

(2003), cert den, 540 US 1151 (2004) (Oatney I). During its

initial investigation of the murder, the state gave defendant

contractual use and derivative use immunity in exchange

for providing information about the circumstances of the

murder. The state then shared part of defendant’s immu-

nized statement with an associate, Johnston. As a result,

Johnston provided the state with additional information

about the murder, pleaded guilty to the crime, and testi-

fied against defendant in his first trial for aggravated mur-

der. Following defendant’s conviction and sentencing, and

this court’s affirmance of the judgment of conviction and

sentence in Oatney I, he obtained post-conviction relief on

the ground that his trial counsel had been inadequate for

failing to move to suppress Johnston’s statements and tes-

timony, which had derived from defendant’s immunized

statement. The post-conviction court remanded the case for

further proceedings.

The state initiated retrial proceedings against defen-

dant, and the state now appeals a pretrial order. Among

other things, that order precludes the state in defendant’s

retrial from calling “Johnston to present testimony that

violates the immunity agreement of Defendant,” even if,

“[w]ithin the limits of the law and the evidence presented,”

defense counsel represents in opening statements that the

evidence will show that Johnston or someone other than

defendant committed the crime or argues in closing that

the state has not proved beyond a reasonable doubt that

defendant committed the crime. Defendant raises a cross-

assignment of error, arguing that, if we reverse on direct

appeal, we should also conclude that the trial court erred

in ruling that defendant would open the door to Johnston’s

testimony by presenting evidence of Johnston’s judgment of

conviction. For the reasons that follow, we conclude that the

trial court did not err in precluding the state from calling

Johnston under the circumstances described in the order

and, for that reason, do not address defendant’s cross-

assignment. Accordingly, we affirm.

558 State v. Oatney

I. BACKGROUND

We take the historical facts from this court’s deci-

sion on direct review, Oatney I, 335 Or 276, and the Court

of Appeals’ post-conviction decisions, Oatney v. Premo, 275

Or App 185, 369 P3d 387 (2015), rev den, 359 Or 847 (2016)

(Oatney II), and Oatney v. Kelly, 288 Or App 550, 407 P3d

958 (2017), rev den, 362 Or 508 (2018) (Oatney III).

The victim was murdered in 1996. Defendant was

ultimately charged with multiple counts of aggravated mur-

der, and Johnston was charged with one count of aggravated

murder. Johnston pleaded guilty, and, in exchange for his

cooperation and testimony, the state agreed that it would

not seek the death penalty in his case. At defendant’s origi-

nal trial, Johnston and defendant both testified. According

to Johnston, he and defendant had together murdered the

victim in defendant’s apartment. Oatney I, 335 Or at 280.

According to defendant, Johnston alone had murdered the

victim while defendant was away from the apartment, and

defendant helped Johnston cover up the crime out of fear of

being implicated in a murder that had occurred in his apart-

ment. Id. A jury convicted defendant and sentenced him to

death. Thereafter, the court sentenced Johnston to life in

prison without the possibility of parole. On direct review,

this court affirmed defendant’s convictions and sentence of

death. Id. at 278.

Defendant sought post-conviction relief, contending

that his trial counsel had been inadequate and ineffective

“by failing to seek suppression of statements and testimony

derived from a statement that [defendant] made about the

murder in exchange for a promise of immunity from the

district attorney.”1 Oatney II, 275 Or App at 187. The post-

conviction court denied relief, and defendant appealed.

The Court of Appeals recounted the circumstances

that gave rise to defendant’s immunized statement. Defen-

dant’s attorney had arranged for defendant “to disclose what

he knew to police and the district attorney on October 23,

1

To avoid confusion, we refer to “defendant” and “the state” throughout this

opinion regardless of their precise designations in the various proceedings that

are recounted.

Cite as 369 Or 555 (2022) 559

1996, in exchange for a promise that his statement and

derivative evidence would not be used against him.” Id. at

197. Before making the statement, the district attorney

promised defendant that “ ‘anything you say during the

course of this interview’ and ‘any information that we derive

from what you tell us’ ‘cannot ever be used against you.’ ” Id.

The district attorney “reconfirmed his original promise” at

the end of the interview. Id. at 213.

In that immunized statement, defendant indicated

that “Johnston had murdered the victim” and had “stolen

several items from her apartment.” Id. at 197. Defendant

also told the prosecutor that, the day after the murder, he

had “helped Johnston dispose of the victim’s clothing” along

with the items stolen from her apartment. Id. After defen-

dant had made the “bulk of the statement,” the detectives

who were present requested defendant’s “permission to

play” a recording of it for Johnston, and defendant agreed.

Id. at 197-98.

“Until that point, despite repeated attempts by the

police to get information about the murder from Johnston,

Johnston had refused to speak to the police about the

murder * * *.” Id. at 198. “Immediately after the detectives

played part of [defendant’s] statement—in which, as noted

above, [defendant] said that Johnston had committed the

murder alone—Johnston’s face turned beet red, and he

clenched and shook his fists. He then immediately asserted

that [defendant] had committed the crime.” Id. During sub-

sequent interviews, Johnston eventually asserted that “he

and [defendant] had committed the crime together,” and, at

defendant’s trial, Johnston gave similar testimony. Id.

Against that factual backdrop, the Court of Appeals

concluded that defendant, who had voluntarily waived his

right against self-incrimination, was entitled to use and

derivative use immunity, which was governed by contract

principles.2 Id. at 203-04, 203 n 1. Applying those principles,

the court concluded that

2

See State v. Soriano, 68 Or App 642, 644 n 3, 684 P2d 1220, aff’d and opin-

ion adopted, 298 Or 392, 693 P2d 26 (1984) (“There are generally three kinds of

testimonial immunity. They are: (1) transactional immunity, under which the

witness is immune from prosecution for any offense to which the immunized

560 State v. Oatney

“the immunity agreement unambiguously provided that,

in exchange for [defendant’s] information about the mur-

der, the district attorney would not use against [defen-

dant] (1) [defendant’s] statement itself, (2) any physical evi-

dence discovered as a result of [defendant’s] statement, or

(3) information discovered as a result of follow-up inter-

views, including the interview of Johnston.”

Id. at 209.

In determining whether Johnston’s statements

derived from defendant’s immunized statement, the Court of

Appeals essentially analogized defendant’s contractual

immunity to the use and derivative use immunity described

in the United States Supreme Court’s decision in Kastigar

v. United States, 406 US 441, 92 S Ct 1653, 32 L Ed 2d

212 (1972). Oatney II, 275 Or App at 209-10, 217; see also

Aiken v. United States, 956 A2d 33, 46 (DC 2008) (Aiken I)

(“[T]he requirements of Kastigar have been applied to

information given by defendants to government agents in

exchange for informal (i.e., non-statutory) promises of immu-

nity.”). In Kastigar, the Court held that, in the context of a

federal statutory grant of immunity, “immunity from use

and derivative use is coextensive with the scope of the [Fifth

Amendment] privilege against self-incrimination[.]” 406 US

at 453. The Court further held that, in a subsequent prose-

cution of an individual who has been granted use and deriv-

ative use immunity, the burden of proof on the prosecution

“is not limited to a negation of taint,” but rather “imposes on

the prosecution the affirmative duty to prove that the evi-

dence it proposes to use is derived from a legitimate source

wholly independent of the compelled testimony.” Id. at 460.

Consistently with the state’s acknowledgement before

the post-conviction court, the Court of Appeals reasoned that,

had defendant’s trial counsel sought before the trial court to

exclude Johnston’s statements as derivative of defendant’s

immunized statement, “the state would have had the bur-

den of showing that Johnston’s statements and testimony

testimony relates; (2) use and derivative use immunity, under which the witness

is not immune from prosecution, but the state may not use the immunized testi-

mony or any of its direct or indirect fruits; and (3) use immunity, under which the

state may not use the immunized testimony in a prosecution of the witness, but

may use evidence obtained through information contained in the testimony.”).

Cite as 369 Or 555 (2022) 561

were ‘derived from a legitimate source wholly independent

of  ’ [defendant’s] immunized statement.” Oatney II, 275 Or

App at 217 (quoting Kastigar, 406 US at 460). The Court of

Appeals further reasoned that “the undisputed evidence is

that Johnston made his October 23 statement to the police

because of [defendant’s] statement”—that is, defendant’s

statement “caused Johnston to implicate [defendant]” and

“to confess his own participation.” Id. at 218-19. Thus, that

court concluded that defendant had proved in the post-

conviction proceeding that “Johnston’s statements and tes-

timony derived from [defendant’s] statement, not from any

independent source.” Id. at 219. Because defendant’s “trial

counsel [had] failed to exercise reasonable professional skill

and judgment in failing to seek suppression of Johnston’s

statements and testimony,” and because that failure preju-

diced defendant, the court reversed and remanded the post-

conviction court’s judgment. Id. at 222-23. This court there-

after denied the state’s petition for review.

On remand in the post-conviction court, defendant

sought to have that court include provisions in its judgment

“prohibiting Johnston from testifying for the state on retrial”

and excluding (1) “Johnston’s testimony at the first trial”;

(2) evidence of “all out-of-court statements made by Johnston

on or after the date of the state’s immunity agreement with

[defendant]”; and (3) evidence “obtained or derived from”

defendant’s immunized statement. Oatney III, 288 Or App

at 551. The post-conviction court refused to include those

provisions, and defendant appealed.

The Court of Appeals affirmed the post-conviction

court’s judgment, reasoning that, if the post-conviction court

properly had granted relief in the first instance, it would not

have addressed the admissibility of evidence on retrial. The

court explained that “the admissibility of evidence on retrial

of the charges against [defendant] was not, and could not

have been, a subject of post-conviction relief” and that, “[t]o

the extent that the grant of post-conviction relief could affect

the admissibility of evidence on retrial under the doctrines

of issue and claim preclusion, as [defendant] contends, that

is an issue that [defendant] will have to raise with the trial

court that presides over the retrial.” Id. at 552.

562 State v. Oatney

After defendant’s case returned to the trial court for

retrial, the parties began litigating a variety of evidentiary

issues.3 In the process of resolving some of those issues, the

trial court held “Kastigar hearings”—that is, as pertinent

here, hearings held for the purpose of permitting the state

to prove that all the evidence that it proposed to use at trial

is wholly independent of defendant’s immunized statement.

See United States v. North, 910 F2d 843, 854 (North I), super-

seded in part on other grounds on reh’g, 920 F2d 940 (DC Cir

1990) (North II), cert den, 500 US 941 (1991) (explaining that

Kastigar hearings are conducted “for the purpose of allow-

ing the government to demonstrate that it obtained all of

the evidence it proposes to use from sources independent of

the compelled testimony”). Kastigar hearings may be held

“pre-trial, post-trial, [or] mid-trial (as evidence is offered), or

[a court] may employ some combination of these methods”;

however, pretrial hearings are “the most common choice.”

Id.

Before the hearing concerning the evidence that the

state intended to offer in its case-in-chief, the trial court

ordered that, as to “evidence obtained after [defendant’s]

October 23, 1996[,] immunized statement,” the state “has

the burden to provide independent sources of information

not derived from [defendant’s] statement.” The state did not

seek to demonstrate that Johnston could be called to testify

in the retrial consistently with that standard, but asserted

that the defense could “open[ ] the door for some of the origi-

nal evidence,” including Johnston’s testimony.

Thereafter, defendant filed a motion seeking to admit

Johnston’s judgment of conviction for murder and the part

3

Also, after defendant’s case returned to the trial court, the legislature

enacted Senate Bill (SB) 1013 (2019). That legislation narrowed the scope of the

offense of aggravated murder. See State v. Bartol, 368 Or 598, 601-05, 496 P3d

1013 (2021) (describing effect of SB 1013). The legislation also created “a new

category of murder, ‘murder in the first degree’ ” and “provided a maximum sen-

tence of life imprisonment without the possibility of parole for ‘murder in the first

degree.’ ” Id. at 601. As a result, the state amended the indictment against defen-

dant to allege the counts of aggravated murder as counts of first-degree murder

under ORS 163.107. See id. at 605 (noting that the changes to the definition of

“aggravated murder” effectuated by SB 1013 apply to crimes committed before

its effective date but that are subject to sentencing proceedings that occur on or

after September 29, 2019). Thus, defendant is no longer being tried for aggra-

vated murder, and he is no longer subject to the death penalty, if convicted.

Cite as 369 Or 555 (2022) 563

of his indictment necessary to explain it, without opening

the door to “any type of rebuttal evidence stemming from

[defendant’s] immunized statement or evidence derived from

[defendant’s] immunized statement or from * * * Johnston

himself.” The state agreed that those “documents are rel-

evant and admissible for [defendant’s] defense,” but argued

that, because defendant “seeks to make selective use of sup-

pressed evidence and lead the jury to inaccurate inferences,”

that “evidence would clearly open the door to suppressed

and ‘tainted’ evidence.” The trial court denied the motion

without explanation.

Over a year later, defendant filed a supplemental

motion, raising many of the same issues as in the original

motion. The state urged the court to deny the supplemen-

tal motion as an attempt to relitigate previously resolved

issues. The hearings that followed focused on what actions

would open the door to permit the state to call Johnston.

After the trial court asked the state to confirm that

Johnston would not be called as part of the state’s case-in-

chief, the state acknowledged that Johnston would be part

of its case, but that, as to “his involvement in the actual

murder, we’re not going there.” However, the state asserted

that, “if there’s anything at all, any argument, any ques-

tioning, any evidence that tends to shift this toward * * *

Johnston,” that would open the door to calling Johnston to

testify because, at that point, his testimony would no lon-

ger be derived from defendant’s immunized statement. The

state reasoned that, if defendant took the position on retrial

that Johnston committed the murder, Johnston would be

entitled to feel the “indignation” and motivation to “set the

record straight” that he originally felt and that Johnston’s

new motivation would create a “clean slate,” thereby per-

mitting the state to call him “to talk about what happened.”

In other words, the state contended that, if Johnston were

motivated to testify based on something that occurred at the

retrial, he would have a new motivation that would permit

his testimony without violating the immunity agreement.

The gist of the state’s argument was that that new motiva-

tion would make Johnston’s testimony at the retrial “inde-

pendent” of defendant’s immunized statements.

564 State v. Oatney

Ultimately, the trial court reiterated its prior ruling

denying defendant’s motion to admit Johnston’s judgment of

conviction. The court explained that “[a]ny admission of that

judgment of conviction would open the door and allow the

State to call * * * Johnston to explain that conviction.” After

the hearing, the court entered an order explaining, among

other things, the actions that would or would not open the

door and permit the state to call Johnston. The order pro-

vides, in part:

“The history of the case is well known to the parties, as is

the [post-conviction] ruling which brings this case back to

trial after 23 years. The ruling from the Court of Appeals

gives the court clear guidance on the use of any statements

of witness Johnston that were made as a result of exposure

to [defendant’s] October 23, 1996[,] immunized statement.

“The Court heard the arguments of the parties on this

issue and therefore the court orders the following:

“1. The state may not use the prior testimony of * * *

Johnston received during [defendant’s original] trial in

Washington County Case C973456CR because that tes-

timony was derived from Defendant’s October 23, 1996[,]

immunized statement.

“2. Testimony from the Defendant in [the present case]

that * * * Johnston committed the crime will open the

door, allowing the state to call * * * Johnston as a rebuttal

witness.

“3. Within the limits of the law and the evidence pre-

sented, Defense Counsel may offer in their opening that

the evidence will prove that * * * Johnston or someone other

than the Defendant committed the crime and may argue in

closings that the state has not proved beyond a reasonable

doubt that Defendant committed the crime. Such state-

ments by the attorneys shall not open the door to the state

to call * * * Johnston to present testimony that violates the

immunity agreement of Defendant.

“4. Defendant may not present any evidence derived from

Defendant’s October 23, 1996[,] immunized statement or

evidence derived from that statement that suggests * * *

Johnston committed the murder of [the victim] without

opening the door to the state calling * * * Johnston in this

present case.

Cite as 369 Or 555 (2022) 565

“5. Both parties may present any evidence that supports

their theory of the case, pursuant to the prior rulings of the

court.”

(Boldface in original.)

At that point, the state filed an offer of proof con-

cerning Johnston’s potential testimony. That offer stated,

“Counsel for the State has spoken to * * * Johnston and

believes that should he testify, * * * Johnston would artic-

ulate his first-hand knowledge that the defendant directly

participated in causing the death of [the victim].” 4 This

interlocutory state’s appeal of the trial court’s pretrial order

followed.

II. ANALYSIS

A. Appealability

This direct appeal derives from statutes that per-

mit the state to appeal certain pretrial orders. See ORS

138.045(1)(d) (providing that “[t]he state may take an appeal

from the circuit court * * * to the Court of Appeals from[,]”

among other things, “[a]n order made prior to trial sup-

pressing evidence”); ORS 138.045(2) (providing that, “[n]ot-

withstanding subsection (1) of this section, when the state

chooses to appeal an order described in subsection [(1)(d)]

of this section, the state shall take the appeal to the

Supreme Court if the defendant is charged with murder or

aggravated murder”); State v. Jackson, 368 Or 705, 715, 498

P3d 788 (2021) (concluding that “the phrase ‘suppressing

evidence,’ as it is used in ORS 138.045(1)(d), includes orders

that exclude evidence on any grounds”).

In this case, the trial court’s order does several things.

Paragraph (1) precludes the state from using Johnston’s tes-

timony from defendant’s original trial. Paragraphs (2) and

(4) preclude defendant from testifying in the retrial that

Johnston committed the crime or from presenting evidence

4

The state’s offer of proof did not address (1) whether Johnston’s motivation

to testify would be affected by defense arguments implicating him in the murder

at defendant’s retrial; or (2) whether Johnston’s motivation to testify would be

unaffected by his prior exposure to defendant’s immunized statements. Because

we reject the state’s contentions on the merits of this appeal and uphold the trial

court’s order, we need not consider how the absence of an offer of proof as to those

propositions affects this appeal.

566 State v. Oatney

that derived from his immunized statement, including evi-

dence suggesting that Johnston committed the murder,

without opening the door to the state calling Johnston to

testify. Paragraph (5) permits the parties to “present any

evidence that supports their theory of the case, pursuant to

the prior rulings of the court.” And paragraph (3) provides

that defense arguments made “[w]ithin the limits of the

law and the evidence presented” about what the evidence

demonstrates—including arguments that the evidence demon-

strates that Johnston or someone other than defendant com-

mitted the murder or that the state has not proved beyond a

reasonable doubt that defendant committed the crime—will

not open the door to the state to call Johnston “to present

testimony that violates the immunity agreement.”

In this appeal, the state has not challenged para-

graph (1).5 And defendant did not seek to cross-appeal the

trial court’s rulings in paragraphs (2) and (4).6 Thus, the

state’s appeal concerns only paragraph (3).

When viewed in the context of the order as a whole,

paragraph (3) effectively precludes the state from calling

Johnston to testify in a particular set of circumstances. As

noted, the court’s rulings in paragraphs (2) and (4) permit

the state to call Johnston to testify if defendant presents

certain evidence suggesting that Johnston committed the

crime (i.e., if defendant testifies that Johnston committed

the crime or presents evidence derived from defendant’s

immunized statement, including evidence that Johnston

committed the murder). Paragraph (3), by contrast, does not

permit the state to call Johnston to present testimony that

5

In its brief, the state acknowledges that, “for purposes of this appeal, * * *

it may not present evidence at the retrial in this case of the statements that

Johnston made to investigators after the police disclosed defendant’s immunized

statement to him or that he thereafter made during his testimony during the pre-

vious trial—that is, the state agrees that that evidence generally is inadmissible

on retrial.”

6

See ORS 138.035(5) (permitting a defendant to “cross-appeal when the state

appeals pursuant to ORS 138.045(1)(d)”); ORS 138.105(11)(a) (“On a defendant’s

cross-appeal under ORS 138.035(5), the appellate court may, in its discretion,

limit review to any decision by the trial court that is inextricably linked, either

factually or legally, to the state’s appeal.”); see also ORS 138.105(11)(b) (“The fail-

ure to file a cross-appeal under ORS 138.035 (5) does not waive a defendant’s

right to assign error to a particular ruling of the trial court on appeal from a

judgment.”).

Cite as 369 Or 555 (2022) 567

violates the immunity agreement if (1) the defense argues in

opening statements that “the evidence will prove that * * *

Johnston or someone other than the Defendant committed

the crime,” or argues in closing that “the state has not proved

beyond a reasonable doubt that Defendant committed the

crime”; and (2) those arguments are based on the evidence

in the record that, consistently with Kastigar, the court has

already determined is wholly independent of defendant’s

immunized statement. Put differently, paragraph (3) pro-

vides that such arguments by defendant do not open the

door to permit the state to call Johnston. Because the court’s

order precludes the state from calling Johnston to testify

under those circumstances, it is appealable pursuant to

ORS 138.045.

Although essentially acknowledging that the trial

court’s order is appealable under that statute, defendant,

nevertheless, has filed a motion for a summary deter-

mination of appealability in this court, contending that

ORS 19.235 permits this court to dismiss appeals for rea-

sons other than the appealability of the decision. See ORS

19.235(3) (providing, in part, that, “[w]hen a party by motion

* * * raises the issue whether the decision is appealable, the

appellate court may make a summary determination of the

appealability of the decision”). Specifically, in his motion,

defendant contends that we should dismiss this appeal for

reasons including that the state failed to “timely and prop-

erly” preserve the issues that it raises, and that “the doc-

trines of issue and claim preclusion as well as law of the

case” compel dismissal. Those contentions, however, relate

to the reviewability of the state’s contentions rather than

the appealability of the trial court’s order. Because we ulti-

mately reject the state’s arguments on appeal and affirm

the trial court’s order, we need not address defendant’s

contention that ORS 19.235 permits an appellate court

to dismiss an appeal for reasons other than the appeal-

ability of the decision. Accordingly, we deny defendant’s

motion.

B. State’s Arguments on the Merits

This case comes to us in an unusual procedural

posture. At issue is a single ruling in a pretrial order that

568 State v. Oatney

precludes the state from calling a witness if defense counsel

makes certain statements and arguments within the law

and evidence presented. By necessity, it is a ruling that is

made without the benefit of an evidentiary record and that

may be revisited as the trial proceeds and in the precise con-

text of the record that ultimately develops. As a result, the

issues on appeal have an abstract quality, and the state’s

arguments are based on assumptions about what the evi-

dence may be.

In its single assignment of error challenging para-

graph (3) of the trial court’s order, the state contends that

“[t]he trial court erred when it precluded the state from call-

ing * * * Johnston as a witness during trial unless defendant

first presents testimony or other evidence that Johnston

alone killed the victim.” Essentially reiterating the argu-

ments that it made below, the state raises two contentions on

appeal. First, the state contends that, “if defendant chooses

to argue to the jury that Johnston murdered the victim act-

ing alone, that would be sufficient[ly] misleading to open

the door to the state rebutting that accusation by present-

ing, through Johnston, contrary evidence that defendant

knows is being excluded.” Second, the state contends that

such arguments would permit the state to call Johnston by

“break[ing] the causal chain between Johnston’s exposure

to the immunized statement in 1996 and his decision to tes-

tify at the retrial.”

Turning first to the state’s contention that the

defense arguments permitted by paragraph (3) would mis-

lead the trier of fact and open the door to permit the state to

call Johnston to testify, the state argues that,

“[a]s a general matter, it is well established that when

certain evidence is excluded but the defendant, for his or

her own tactical purposes, nonetheless chooses to pres-

ent either evidence or argument that provides a mislead-

ing picture to [the] trier of fact, and thereby makes that

excluded evidence relevant as rebuttal to correct that false

impression, that tactical choice may ‘open the door’ to [the]

state’s presentation of the excluded evidence.”

Further, the state asserts that, “[i]n such circumstances, the

question for purposes of this ‘open the door’ rule is whether,

Cite as 369 Or 555 (2022) 569

given the nature of the excluded evidence, the defendant’s

tactical choice created an incomplete, misleading, or unfair

impression for the jury and, if so, whether admission of the

otherwise excluded evidence is appropriate to rebut that

false impression.”

In support of that argument, the state points to

cases like State v. Miranda, 309 Or 121, 128, 786 P2d 155,

cert den, 498 US 879 (1990), in which this court reasoned

that “[a] defendant’s own inquiry on direct examination into

the contents of otherwise inadmissible statements opens

the door to further inquiry on cross-examination relating to

those same statements.” See also United States v. Robinson,

485 US 25, 32, 108 S Ct 864, 99 L Ed 2d 23 (1988) (reasoning

that, where defense counsel in closing argument remarked

that the government did not allow the defendant to explain

his side of the story, the prosecutor’s reference to defendant’s

opportunity to have testified was a “fair response”); State v.

Apodaca, 291 Or App 268, 269, 420 P3d 670 (2018) (conclud-

ing that the trial court did not err in admitting prior bad

acts evidence to “counter evidence that defendant himself

elicited, which could have suggested to the jury that he had

not previously assaulted the victim”).

This case is distinguishable from Miranda, in which

the defendant’s use of inadmissible evidence opened the door

to the state’s use of that inadmissible evidence. Here, para-

graph (3) contemplates a different set of circumstances in

which defense arguments about what the evidence shows

(i.e., that the evidence will show that Johnston or someone

other than defendant committed the crime, or that the state

has not proved beyond a reasonable doubt that defendant

committed the crime) are circumscribed by and based on the

evidence in the retrial proceeding that the trial court will

have already determined is admissible and wholly indepen-

dent of defendant’s immunized statement.

Arguments that urge the jury to draw legitimate

inferences based on admissible evidence are generally

acceptable; conversely, arguments that go beyond the admis-

sible evidence generally are not. See State v. Sperou, 365 Or

121, 134, 442 P3d 581 (2019) (explaining that “statements by

attorneys at trial are generally required to be limited to the

570 State v. Oatney

issues and evidence presented”); Cler v. Providence Health

System-Oregon, 349 Or 481, 487-88, 245 P3d 642 (2010)

(explaining that, in presenting closing arguments, counsel

has “a large degree of freedom to comment on the evidence

submitted and urge the jury to draw any and all legitimate

inferences from that evidence[,]” but counsel may not make

“statements of facts outside the range of evidence” (inter-

nal quotation marks omitted)); see also RPC 3.4(e) (provid-

ing, in part, that a lawyer shall not, “in trial, allude to any

matter that the lawyer does not reasonably believe is rele-

vant or that will not be supported by admissible evidence”).

Jurors are also typically instructed to base their verdict on

evidence and not the statements of attorneys. See State v.

Black, 364 Or 579, 597 n 9, 437 P3d 1121 (2019) (noting that

“[w]hat a party says in closing argument is not evidence, and

the jury was instructed on that point”); see also UCrJI 1005

(instructing jurors,” to “[b]ase [their] verdict on the evidence

and these instructions” and that “[t]he lawyers’ statements

and arguments are not evidence”).

The state’s broader assertion that the defense argu-

ments permitted by paragraph (3) could create an incom-

plete, misleading, or unfair impression finds no traction.

Permissible argument circumscribed by the admissible,

nonderivative evidence in the retrial proceeding, and the

legitimate inferences that may be drawn from that evidence,

permit defendant to litigate his theory of the case, as he is

entitled to do. To the extent that the state is prevented from

rebutting the inferences that defense counsel may ask the

jury to draw by calling Johnston to testify in violation of the

immunity agreement, any potential prejudice to the state is

a result of the state’s initial decision to grant defendant use

and derivative use immunity. Having made that decision, it

would not be appropriate to permit the state to effectively

breach the agreement by calling Johnston to present testi-

mony that violates it, which is what paragraph (3) prohibits.

For similar reasons, we reject the state’s contention

that defense arguments suggesting to the jury that “Johnston

acted alone” would waive the benefit of defendant’s immu-

nity agreement so as to “open the door” to the state call-

ing Johnston to testify. As noted, because defendant was

Cite as 369 Or 555 (2022) 571

not compelled to provide to the state the information that

he did, his immunity, as the Court of Appeals explained, is

contractual in nature. Generally, a party to a contract may

waive the performance of a provision that is for its benefit.

Cf. Bennett v. Farmers Ins. Co., 332 Or 138, 156, 26 P3d 785

(2001) (“A party to a written contract may waive a provision

of that contract by conduct or by oral representation.”); see

also id. (“Waiver is the voluntary relinquishment of a known

right.”). Here, if, as paragraph (3) contemplates, defense

counsel’s arguments are based on the evidence in the retrial

proceeding that the court determines to be admissible and

wholly independent of defendant’s immunized statement,

those arguments will not serve to voluntarily relinquish the

protections of defendant’s immunity agreement.

Finally, pretrial rulings are often based on “rep-

resentations and arguments” about what the evidence is

expected to demonstrate and that are therefore “hypo-

thetical and abstract.” State v. Pitt, 352 Or 566, 573, 293

P3d 1002 (2012). “[A]s trial progresses, new circumstances

may arise that directly or indirectly alter the admissibility

or evidentiary value of certain pieces of evidence.” Id. As

a consequence, the scope of permissible argument may be

affected. “Generally, a trial court has broad discretion in

determining whether to reconsider its earlier rulings and

may revisit a pretrial ruling when events at trial unfold that

call for adjustments to that ruling.” State v. Langley, 363 Or

482, 521, 424 P3d 688 (2018), adh’d to as modified on recons,

365 Or 418, 446 P3d 542 (2019), cert den, ___ US ___, 141

S Ct 138 (2020) (internal citation omitted). Here, the trial

court has already recognized that it may become necessary

to revisit its prior rulings as the case progresses, and our

decision does not foreclose the trial court from doing so.

At this juncture, then, the success of the state’s appeal

turns on its alternative contention, viz., that, “[i]f defendant

blames the murder entirely on Johnston, that could sever

the connection between the immunized statement and

Johnston’s motive to testify at trial.” Relying on United States

v. Allen, 864 F3d 63 (2d Cir 2017), the state reasons that a

witness’s testimony can derive from an immunized state-

ment in three ways: “[T]he statement may inform what the

572 State v. Oatney

witness knows, whether the police know about the witness,

or why the witness chooses to testify.” (Emphases in state’s

brief.) Here, the state asserts that “only the ‘why’ question

is at issue.” Specifically, the state argues that, although

Johnston “was made aware of * * * defendant’s immunized

statement, [he] has personal knowledge of the facts of the

murder independent of [his] exposure” to that statement,

and, as a result, the use and derivative use “immunity that

defendant was granted does not preclude the state from

presenting Johnston’s testimony at the retrial, so long as

the state can show that his motive to testify does not derive

from—[and] is now independent of—his previous exposure to

the immunized statement,” which “could arise from defense

arguments at the retrial that place the blame for the murder

only on him.” (Emphasis in state’s brief.) According to the

state, the defense arguments permitted by paragraph (3)

of the trial court’s order would serve to “break the causal

chain between Johnston’s exposure to the immunized state-

ment in 1996 and his decision to testify at the retrial.”

Defendant disagrees, asserting that the “question

is not ‘why’ Johnston may be motivated in the retrial to tes-

tify against [defendant],” but whether the state can prove,

consistently with Kastigar, that Johnston’s exposure to

defendant’s immunized statement did not “ ‘shape, alter, or

affect’ ” the information that he seeks to provide. (Quoting

Allen, 864 F3d at 93.) According to defendant, the state has

“never tried to meet its burden on this issue” and, “[h]ad it

tried, it would have been prevented from doing so by the

doctrines of issue and claim preclusion and law of the case.”

(Emphasis in defendant’s brief.) Further, defendant argues

that, “[e]ven if those doctrines did not prevent the state from

attempting to meet its ‘heavy burden,’ under Kastigar, it

could never meet its burden in this case because exposing

Johnston to [defendant’s] immunized statement did ‘shape,

alter [and] affect the information that [Johnston] provided

and that the Government used.’ ” (Quoting Allen, 864 F3d at

93 (emphasis and third and fourth brackets in defendant’s

brief).) As defendant notes, “ ‘but for’ Johnston’s exposure

to [defendant’s] immunized statement, Johnston would not

have made any statement implicating [defendant],” and

“[n]othing, not the passage of time, nor any change of heart

Cite as 369 Or 555 (2022) 573

or motivation by Johnston can ever alter that fact or that

conclusion of law.” (Emphasis in defendant’s brief.)

Before turning to the substance of the parties’ con-

tentions, we begin by addressing a preliminary matter, which

will help clarify the issues presented for our review and our

resolution of them. The parties do not dispute that the state

gave defendant use and derivative use immunity, or that that

immunity was contractual in nature because defendant had

not been compelled to provide the information that he did.

In Oatney II, the Court of Appeals determined that, in the

context of the parties’ agreement, “derivative use” carried

its well-defined legal meaning, and it looked to Kastigar as

a useful construct for understanding the scope of that immu-

nity. 275 Or App at 209-10, 217. When the case returned

to the trial court for retrial, the parties and the trial court

also looked to Kastigar and its progeny in litigating some of

the issues that arose, and, as a result, the trial court held

Kastigar hearings. By the time of the Kastigar hearing con-

cerning the evidence that the state intended to offer in its

case-in-chief, the trial court had ordered that, as to evidence

obtained after defendant gave his immunized statement,

the state “has the burden to provide independent sources of

information not derived from [defendant’s] statement.” At the

hearing itself, the trial court noted that “[b]oth parties [had]

talked about the need to have this evidentiary Kastigar hear-

ing before other things could be done.” Consistently with how

the parties and trial court have been trying this case, and as

did the Court of Appeals in Oatney II, we look to Kastigar and

its progeny in understanding use and derivative use immu-

nity in the context of this particular case.

As noted, Kastigar requires more than “a negation

of taint” and “imposes on the prosecution the affirmative

duty to prove that the evidence it proposes to use is derived

from a legitimate source wholly independent of the com-

pelled testimony.” 406 US at 460. The trial court in this

case has required the state to satisfy that standard as to

evidence that was obtained after defendant gave his immu-

nized statement that the state intends to use at defendant’s

retrial.7

7

Noting that this court has had no “occasion to apply the Kastigar standard

under the Fifth Amendment with respect to ‘use and derivative use’ immunity

574 State v. Oatney

Applying that standard in the context of a witness

who has been exposed to immunized information, courts

have explained that, even when a witness would testify from

personal knowledge, Kastigar can be violated in at least two

independent, alternative ways that are pertinent to the

issue raised in this appeal. First, a Kastigar violation can

occur if the government uses the immunized information “to

motivate another witness to give incriminating testimony.”

United States v. Slough, 641 F3d 544, 549 (DC Cir 2011),

cert den, 566 US 1043 (2012); see also North II, 920 F2d

at 942 (“[E]ven where the witness testifies from personal

knowledge, use within the meaning of Kastigar may occur

* * * if the immunized testimony influenced the witness’[s]

decision to testify.”); Aiken v. United States, 30 A3d 127, 133

(DC 2011) (Aiken II) (“A witness’s testimony also must be

excluded if it was motivated by exposure to the immunized

testimony.” (Internal quotation marks omitted.)). Second, a

violation can occur if the content of a witness’s subsequent

testimony is “ ‘shaped, altered, or affected’ by such expo-

sure.” United States v. Poindexter, 951 F2d 369, 373 (DC Cir

1991), cert den, 506 US 1021 (1992) (quoting North I, 910 F2d

at 863); see also Allen, 864 F3d at 93 (explaining that, “[a]t

a minimum, * * * we agree with the D.C. Circuit that the

Government is required to prove that [a witness’s] exposure

to the compelled testimony did not shape, alter, or affect

the information that he provided and that the Government

used”); Aiken II, 30 A3d at 133 (explaining that a prohibited

use occurs if a witness’s testimony “is in any way shaped,

altered, or affected by such exposure, even where the

that is based only on a contract,” the state contends that, in determining whether

evidence derives from defendant’s immunized statement, we should apply a “sim-

ilar standard” under which evidence is not excluded if it has only a “tenuous

connection to the immunized statement.” (Emphasis added.) Specifically, the

state points to the “totality of the circumstances” standard described in State v.

Jarnagin, 351 Or 703, 716, 277 P3d 535 (2012), for “determining whether physical

or testimonial evidence derives from or is the product of an earlier Miranda vio-

lation.” According to the state, in determining whether evidence is derived from

defendant’s immunized statement, we should look to the totality of the circum-

stances and consider factors that “may serve to attenuate the ‘taint,’ ” including

“the amount of time” that has elapsed and “subsequent events that may have

dissipated the taint of the earlier violation.” (Internal quotation marks omitted.)

Although the state acknowledges that the Jarnagin standard “is an imperfect

fit for these circumstances,” it nonetheless contends that the “standard can pro-

vide a useful analogy here.” However, as explained above, in resolving the issues

raised in this appeal we look to Kastigar and its progeny.

Cite as 369 Or 555 (2022) 575

witness testifies from personal knowledge” (internal quota-

tion marks omitted)).

Once a witness has been exposed to immunized

information, it may be extremely difficult for the state to

demonstrate that the witness’s subsequent testimony is

wholly independent of the exposure, particularly when the

state fails to memorialize the witness’s testimony before

the exposure occurs. See Allen, 864 F3d at 93 (“The most

effective way to demonstrate that a witness’s testimony

was untainted by exposure to a defendant’s immunized tes-

timony is by demonstrating that his or her testimony was

unchanged from comparable testimony given before the

exposure.”). Generalized denials that the exposure shaped,

altered, or affected the content of a witness’s subsequent

testimony are insufficient. Cf. United States v. Hampton, 775

F2d 1479, 1487 (11th Cir 1985) (“Obviously, the government’s

conclusory denials of direct or derivative use are insuffi-

cient even to negate taint, much less to carry the govern-

ment’s affirmative burden of tracing all evidence presented

to wholly independent sources.” (Internal quotation marks

omitted.)). Instead, a trial court will need to “parse the evi-

dence” to “ ‘separate the wheat of the witnesses’ unspoiled

memory from the chaff of [the] immunized testimony.’ ”

Slough, 641 F3d at 550 (quoting North I, 910 F2d at 862

(brackets in Slough)).

Further, as a trial court determines whether an

exposed witness’s testimony is wholly independent of expo-

sure to the immunized information, witness credibility is an

important factor to be examined in conjunction with other

evidence in the record. As the Second Circuit explained

in United States v. Kurzer, 534 F2d 511, 517 (2d Cir 1976),

because “[h]uman motivation is often difficult to discern,

and a decision is frequently the product of several concur-

rent influences,” a trial court must determine a witness’s

credibility “not only in terms of his inclination to tell the

truth, but also with regard to whether he is truly able to iso-

late the factors which convinced [the witness] to cooperate.”

To reiterate, the state’s contention here is that

defense arguments that Johnston alone committed the

murder could “provide him with a new and independent

576 State v. Oatney

motivation to testify such that his testimony would no longer

be derivative of his past exposure to the immunized state-

ment.” In light of the foregoing principles, that argument

suffers from two fundamental flaws.

First, even if we were to assume that the state could

demonstrate that Johnston was motivated to testify at defen-

dant’s retrial for a reason entirely apart from his prior expo-

sure to defendant’s immunized statement, it does not follow,

as the state contends, that Johnston’s testimony would then

be wholly independent of—and not derived from—that expo-

sure and, therefore, admissible. As noted, when exposure to

immunized information motivates a witness to cooperate

or testify against the immunized party, that is a sufficient

reason to exclude the witness’s evidence under Kastigar.8

However, contrary to the state’s contention, even when a

witness is not motivated to testify because of the prior expo-

sure to the immunized information, the testimony may still

be prohibited under Kastigar if the content of the witness’s

testimony is altered, shaped, or affected by that exposure.

That is true even when the witness has personal knowledge

of the circumstances of the crime. See Slough, 641 F3d at

550 (explaining that a trial court will need to “parse the

evidence” to “separate the wheat of the witnesses’ unspoiled

memory from the chaff of the immunized testimony” (inter-

nal quotation marks and brackets omitted)).

Second, and more fundamentally, the state has not

sought to demonstrate in the trial court that Johnston could

testify at the retrial consistently with Kastigar. Although

the court held a pretrial Kastigar hearing to determine

8

See United States v. Helmsley, 941 F2d 71, 83 (2d Cir 1991), cert den, 502

US 1091 (1992) (“In Kurzer, there existed a danger of manipulation by govern-

ment investigators who might immunize a witness and then use the fact of the

immunized testimony to anger a subject of the investigation and cause that sub-

ject in turn to incriminate the witness. Such a danger directly implicated Fifth

Amendment policies, and thus testimony that might have resulted from such

manipulation could not be used against the immunized witness.”); Hampton,

775 F2d at 1488 (“Where the testimony of an immunized witness enables the

government to build a case against his co-conspirator, who consequently strikes

a plea bargain with prosecutors and agrees to testify against the immunized

witness, the testimony of the co-conspirator must be deemed to have been indi-

rectly derived from the testimony of the immunized witness in violation of

Kastigar.”).

Cite as 369 Or 555 (2022) 577

whether the state’s evidence on retrial was wholly indepen-

dent of defendant’s immunized statement, the state did not

seek a ruling from the trial court as to whether Johnston

could testify. Instead, the question before the court was

whether, and under what circumstances, the defense would

“open the door” to permitting the state to call Johnston

to testify. That is a qualitatively different question than

the Kastigar inquiry: whether Johnston’s testimony at the

retrial could be considered wholly independent of his expo-

sure to defendant’s immunized statement. Had the state

raised that question in the trial court, defendant would have

had the opportunity to litigate his contention that the state

is categorically barred from calling Johnston based on the

law of the case and the claim and issue preclusion princi-

ples that he now raises, and the trial court would have had

an opportunity to make a ruling about the admissibility of

Johnston’s testimony.9

In sum, the state’s arguments on appeal are

unavailing. For that reason, we conclude that the trial court

did not err in ruling that, “within the limits of the law and

the evidence presented,” defense counsel may argue in open-

ing or closing statements that Johnston or someone other

than defendant committed the crime or that the state has

not proved beyond a reasonable doubt that defendant com-

mitted the crime, without opening the door to the state to

call “Johnston to present testimony that violates the immu-

nity agreement of Defendant.”

9

At the hearings before the trial court, the state indicated that, if Johnston

developed a new motive to testify at the retrial, his testimony would not violate

defendant’s immunity or the Court of Appeals decision in Oatney II. For his part,

defendant argued that, in Oatney III, the Court of Appeals “did not hold that

Johnston’s testimony is admissible in this retrial.” Instead, according to defen-

dant, the Court of Appeals, in Oatney III, “trusted the trial court to make the

determination” on retrial that, in Oatney II, it had held “that Johnston’s testi-

mony is out.” The trial court here also expressed skepticism that Johnston could

testify in the retrial, explaining that “Johnston’s statements were all predi-

cated on [the state] playing that tape to * * * Johnston” and that, in analyzing

the Court of Appeals’ reasoning, “it’s clear that but for [defendant’s] immunized

statement[,] * * * Johnston wouldn’t have said anything. And that’s where we’re

at.” However, that discussion occurred in the context of deciding what defense

actions would open the door to Johnston’s testimony and not in the context of a

Kastigar hearing at which the state would have borne the burden of establishing

that Johnston’s testimony was wholly independent of his exposure to defendant’s

immunized statement.

578 State v. Oatney

C. Defendant’s Cross-Assignment of Error

Finally, as noted above, defendant raises a cross-

assignment of error, contending that “[t]he retrial court

erred when it ruled that [defendant] would open the door

to testimony by Johnston if [defendant] presented the judg-

ment of conviction of Johnston for the aggravated murder of

[the victim] because Johnston’s conviction was derived from

[defendant’s] immunized statement.” A cross-assignment of

error is appropriate when, among other things, a respon-

dent contends that the trial court erred in making an

intermediate ruling and that, if the appellant succeeds in

obtaining a reversal, the intermediate ruling should be

corrected. See ORAP 5.57 (describing conditions for rais-

ing a cross-assignment of error). Having upheld the trial

court’s order on appeal, it is unnecessary for us to resolve

whether defendant’s contention is properly raised by way of

a cross-assignment of error or to address the merits of that

contention.

The order of the circuit court is affirmed.