State v. Benton

Under State v. Samuel, 289 Or App 618 (2017), whether a variance of proof is permissible turns on “whether the variance concerns a material element of the crime and whether the variance prejudiced the defendant” and “whether the defendant was * * * tried on the offense that was indicted by the grand jury.” Under State v. Smith, 310 Or 1 (1990), a citizen becomes a state agent “if the police [are] directly or indirectly involved to a sufficient extent in initiating, planning, controlling or supporting the informant’s activities.” Under State v. Covington, 291 Or App 514 (2018), to establish a due process violation stemming from “a trial court’s failure to conduct an in camera review,” a defendant must “demonstrate that the items of which he sought review would have been material and favorable to his defense.”

Defendant appealed convictions for two counts of aggravated murder and one count of attempted murder. Defendant asserted thirty-one assignments of error, of which the Court addressed twelve, in three categories: (1) That the trial court erred in denying Defendant’s demurrers and motions “based on an alleged variance in proof between the indictment and the evidence presented at trial;” (2) That the trial court erred in denying Defendant’s “motion to suppress on the ground that the informant was acting as a state agent;” and, (3) “That the trial court erred when it refused to conduct an in camera review of * * * the jailhouse informant[’s] * * * psychological evaluation.”
 
On appeal, Defendant argued that: (1) “[T]he [indicted] crimes * * * were [not] the same crimes for which he was tried and convicted; (2) The jailhouse informant became a state agent on July 2, 2015, due to proffers between the informant and the State; and, (3) The informant’s psychological evaluation plausibly contained impeachment evidence.

In response, the State argued that: (1) “[T]he only possible variance [wa]s that it did not prove an exact date on which the conspiracy [to kill the victim] started,” but that such variance was “neither material nor prejudicial;” (2) The State never authorized the informant “to act on its behalf,” never requested that the informant meet with or ask Defendant questions, and did not agree to a “cooperation agreement;” and, (3) Defendant failed to show the informant’s evaluation contained material relevant to his defense.

Under State v. Samuel, 289 Or App 618 (2017), whether a variance of proof is permissible turns on “whether the variance concerns a material element of the crime and whether the variance prejudiced the defendant” and “whether the defendant was * * * tried on the offense that was indicted by the grand jury.” Under State v. Smith, 310 Or 1 (1990), a citizen becomes a state agent “if the police [are] directly or indirectly involved to a sufficient extent in initiating, planning, controlling or supporting the informant’s activities.” Under State v. Covington, 291 Or App 514 (2018), to establish a due process violation stemming from “a trial court’s failure to conduct an in camera review,” a defendant must “demonstrate that the items of which he sought review would have been material and favorable to his defense.”

The Court found that the relevant “variances of proof” regarding conspiracy were not material because the date of agreement to commit a felony “is not a material element of the crime of conspiracy,” nor were the variances prejudicial because “the statutory theory of [conspiracy] as indicted was the theory submitted to the jury” and “did not change between the indictment and trial.” Concerning variances regarding attempted murder, the court found any error harmless because the evidence at issue was “relevant and admissible” to other charges. The Court found that on July 2, 2015, the state “negotiat[ed] to give [the informant] a benefit in return for his testimony against [D]efendant” and the informant “explained that he was questioning [D]efendant” without being told “to cease questioning” by the State, shifting the relationship to a place where “the state was positively encouraging [the informant] to continue to question [D]efendant.” The Court reasoned that such activity was sufficient State involvement to make the informant a state agent. Finally, the Court found Defendant failed to “show[] that it is reasonable to believe that [the informant’s psychological evaluation] records contain information that is material and favorable to [his] defense.”

Conviction on Count 8 reversed; conviction on Counts 1, 2, 6, and 7 reversed and remanded; otherwise affirmed.