- Court: Oregon Court of Appeals
- Area(s) of Law: Post-Conviction Relief
- Date Filed: 12-09-2015
- Case #: A147931
- Judge(s)/Court Below: Sercombe, J., for the Court; Nakamoto, P.J.; & Egan, J.
- Full Text Opinion
Petitioner appealed a post-conviction court’s judgment denying Petitioner post-conviction relief on petitioner’s claim that trial counsel provided constitutionally inadequate assistance under Article I, section 11, of the Oregon Constitution by failing to seek suppression of co-defendant, Johnson’s, statements and testimony derived from a statement that Petitioner made about the murder in exchange for a promise of immunity from the district attorney. On appeal Petitioner argued that the agreement under which he gave his statement was for “use and derivative use” immunity, which covered the co-defendant’s statements accusing Petitioner of being an accomplice to the murder. The Court held that in the context of immunity, the word “derive” is a legal term of art. “Derivative evidence” is any evidence obtained by use—evidentiary or nonevidentiary—of the immunized statement. In order to be admissible at trial, the state would have had the burden of showing, by a preponderance of the evidence, that Johnson’s statements fell under the inevitable discovery doctrine; that purportedly derivative evidence was obtained wholly from an independent source or that it would inevitably have been discovered. The Court found that the state would not have been able to meet its burden regarding the admissibility of Johnson’s statements, as they were derived entirely from Petitioner’s statements, and that Petitioner’s trial counsel’s failure to seek their suppression was both inadequate assistance of counsel and prejudicial to Petitioner. Reversed and Remanded.