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)
                                   

     Defendant had been convicted of aggravated murder and sentenced to death.
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
immunized statement with an associate, Johnston. As a result, Johnston provided the state with additional information about the murder, pleaded guilty to
the crime, and testified against defendant in his first trial for aggravated murder. 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 defendant’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 violates 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 decision of this case.
Cite as 

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        BALMER, J.

          Defendant was convicted of aggravated murder and
sentenced to death. State v. Oatney, 

, 

(2003), cert den, 

 (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 immunized statement with an associate, Johnston. As a result,
Johnston provided the state with additional information
about the murder, pleaded guilty to the crime, and testified against defendant in his first trial for aggravated murder. 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 testimony, which had derived from defendant’s immunized
statement. The post-conviction court remanded the case for
further proceedings.

         The state initiated retrial proceedings against defendant, 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 decision on direct review, Oatney I, 

, and the Court
of Appeals’ post-conviction decisions, Oatney v. Premo, 

, 

 (2015), rev den, 

 (2016)
(Oatney II), and Oatney v. Kelly, 

, 

 (2017), rev den, 

 (2018) (Oatney III).
         The victim was murdered in 1996. Defendant was
ultimately charged with multiple counts of aggravated murder, 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 original trial, Johnston and defendant both testified. According
to Johnston, he and defendant had together murdered the
victim in defendant’s apartment. Oatney I, 

.
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 apartment. 

 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. 

.
         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, 

. The post-conviction court denied relief, and defendant appealed.
         The Court of Appeals recounted the circumstances
that gave rise to defendant’s immunized statement. Defendant’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 

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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 defendant 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 subsequent 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, 

, 644 n 3, 

, aff’d and opinion adopted, 

, 

 (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 murder, the district attorney would not use against [defendant] (1) [defendant’s] statement itself, (2) any physical evidence discovered as a result of [defendant’s] statement, or
    (3) information discovered as a result of follow-up interviews, 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, 

, 

, 

 (1972). Oatney II, 

; see also
Aiken v. United States, 

, 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 immunity.”). 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[.]” 

. The Court further held that, in a subsequent prosecution of an individual who has been granted use and derivative 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 evidence it proposes to use is derived from a legitimate source
wholly independent of the compelled testimony.” 

.
         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 burden 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 testimony 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 

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were ‘derived from a legitimate source wholly independent
of  ’ [defendant’s] immunized statement.” Oatney II, 

 (quoting Kastigar, 

). 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 testimony 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 prejudiced defendant, the court reversed and remanded the post-conviction court’s judgment. Id. at 222-23. This court thereafter 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), superseded in part on other grounds on reh’g, 920 F2d 940 (DC Cir
1990) (North II), cert den, 

 (1991) (explaining that
Kastigar hearings are conducted “for the purpose of allowing 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 original 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, 

, 

 (2021) (describing effect of SB 1013). The legislation also created “a new
category of murder, ‘murder in the first degree’ ” and “provided a maximum sentence of life imprisonment without the possibility of parole for ‘murder in the first
degree.’ ” 

. As a result, the state amended the indictment against defendant to allege the counts of aggravated murder as counts of first-degree murder
under ORS 163.107. See 

 (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 aggravated murder, and he is no longer subject to the death penalty, if convicted.
Cite as 

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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 relevant and admissible for [defendant’s] defense,” but argued
that, because defendant “seeks to make selective use of suppressed 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 supplemental 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-inchief, 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 questioning, 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 longer 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 permitting 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 motivation would make Johnston’s testimony at the retrial “independent” 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 provides, 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 testimony 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 presented, 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 statements 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.
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     “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 concerning Johnston’s potential testimony. That offer stated,
“Counsel for the State has spoken to … Johnston and
believes that should he testify, … Johnston would articulate 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 permit 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 suppressing evidence”); ORS 138.045(2) (providing that, “[n]otwithstanding 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, 

, 

 (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 testimony 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 evidence 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 demonstrates that Johnston or someone other than defendant committed 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 paragraph (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 previous 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 failure 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.”).
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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) provides 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 determination of appealability in this court, contending that
ORS 19.235 permits this court to dismiss appeals for reasons 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 properly” preserve the issues that it raises, and that “the doctrines 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 ultimately 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 appealability 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 context 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 evidence may be.
          In its single assignment of error challenging paragraph (3) of the trial court’s order, the state contends that
“[t]he trial court erred when it precluded the state from calling … Johnston as a witness during trial unless defendant
first presents testimony or other evidence that Johnston
alone killed the victim.” Essentially reiterating the arguments 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 acting alone, that would be sufficient[ly] misleading to open
the door to the state rebutting that accusation by presenting, 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 testify at the retrial.”
         Turning first to the state’s contention that the
defense arguments permitted by paragraph (3) would mislead 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 present either evidence or argument that provides a misleading 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 

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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, 

, 

,
cert den, 

 (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,

, 

, 

 (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, 

, 

 (2018) (concluding 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, paragraph (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 independent 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 admissible evidence generally are not. See State v. Sperou, 

, 

 (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, 

, 

 (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” (internal quotation marks omitted)); see also RPC 3.4(e) (providing, in part, that a lawyer shall not, “in trial, allude to any
matter that the lawyer does not reasonably believe is relevant 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, 

, 597 n 9, 

 (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 arguments permitted by paragraph (3) could create an incomplete, 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 testimony 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 immunity agreement so as to “open the door” to the state calling Johnston to testify. As noted, because defendant was
Cite as 

 (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., 

, 

(2001) (“A party to a written contract may waive a provision
of that contract by conduct or by oral representation.”); see
also 

 (“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 “representations and arguments” about what the evidence is
expected to demonstrate and that are therefore “hypothetical and abstract.” State v. Pitt, 

, 

 (2012). “[A]s trial progresses, new circumstances
may arise that directly or indirectly alter the admissibility
or evidentiary value of certain pieces of evidence.” 

 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, 

, 

 (2018), adh’d to as modified on recons,

, 

 (2019), cert den, ___ US ___, 

 (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, 

 (2d Cir 2017), the state reasons that a
witness’s testimony can derive from an immunized statement 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 statement 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 testify 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, 

.) 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, 

 (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 

 (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’ contentions, 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 immunity. 

. 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 concerning 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 hearing 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 immunity 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 compelled testimony.” 

. The trial court in this
case has required the state to satisfy that standard as to
evidence that was obtained after defendant gave his immunized 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, 

 (DC Cir 2011),
cert den, 

 (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 exposure.” United States v. Poindexter, 951 F2d 369, 373 (DC Cir
1991), cert den, 

 (1992) (quoting North I, 910 F2d
at 863); see also Allen, 

 (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 “similar 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, 

, 

 (2012), for “determining whether physical
or testimonial evidence derives from or is the product of an earlier Miranda violation.” According to the state, in determining whether evidence is derived from
defendant’s immunized statement, we should look to the totality of the circumstances 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 provide 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 

 (2022)                                  575

witness testifies from personal knowledge” (internal quotation 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, 

 (“The most
effective way to demonstrate that a witness’s testimony
was untainted by exposure to a defendant’s immunized testimony 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 insufficient even to negate taint, much less to carry the government’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 evidence” to “ ‘separate the wheat of the witnesses’ unspoiled
memory from the chaff of [the] immunized testimony.’ ”
Slough, 

 (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 exposure 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 concurrent 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 isolate 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 statement.” 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 defendant’s retrial for a reason entirely apart from his prior exposure 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 exposure 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 exposure 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, 

 (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” (internal 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, 

 (1992) (“In Kurzer, there existed a danger of manipulation by government 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 subject 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 indirectly derived from the testimony of the immunized witness in violation of
Kastigar.”).
Cite as 

 (2022)                                                     577

whether the state’s evidence on retrial was wholly independent 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 exposure 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 principles 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 opening 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 committed the crime, without opening the door to the state to
call “Johnston to present testimony that violates the immunity 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 defendant, 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 testimony is out.” The trial court here also expressed skepticism that Johnston could
testify in the retrial, explaining that “Johnston’s statements were all predicated 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 judgment 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 respondent 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 raising 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.