and submitted May 30, 2017
Josephine County Circuit Court 14CR0543, 130423M; Pat Wolke,
Wm. Barton argued the cause and fled the brief for appellant.
Jennifer S. Lloyd, Assistant Attorney General, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General, and
Michael A. Casper, Assistant Attorney General.
Or.App. 554] Before DeHoog, Presiding Judge, and Hadlock,
Judge, and Powers, Judge. [*]
shot her husband in the leg. All four of defendant's
children were present. Following a jury trial, she was
convicted of first-degree assault and four counts of reckless
endangerment. On appeal, defendant challenges, among other
things, the trial court's denial of her motion to
suppress statements that she made in response to police
officers' questions before they read her Miranda
warnings, as well as the trial court's exclusion of
expert testimony about the result of a "danger
assessment" of the threat posed by defendant's
husband, which defendant offered in support of her
self-defense theory. Held: Defendant's
pre-Mirandized statements did not violate the Fifth Amendment
to the United States Constitution and, even if the trial
court erred in admitting those statements because they were
obtained in violation of defendant's rights under Article
I, section 12, of the Oregon Constitution, any such error was
harmless. Additionally, the trial court did not err in
excluding defendant's "danger assessment,"
because it was not relevant to establish the reasonableness
of defendant's belief that she needed to act in self
Or.App, 555] HADLOCK, J.
an evening that involved heavy drinking and arguments,
defendant shot her husband, J, in the leg. All four of
defendant's children were present. A jury convicted
defendant of first-degree assault and four counts of reckless
endangerment, and she appeals, raising three assignments of
error. Defendant first challenges the trial court's
denial of her motion to suppress statements that she made in
response to questions that police officers asked before they
read her Miranda warnings. Second, defendant makes
unpreserved challenges to what she characterizes as comment
on her "invocation of her rights to counsel, and on her
exercise of her rights to remain silent." Third,
defendant challenges the trial court's exclusion of
expert testimony that she offered in support of her
self-defense theory; the excluded evidence related to a
"danger assessment" regarding the threat that J may
have posed to defendant before she shot him.
reasons set forth below, we reject defendant's first
assignment of error on the grounds that admission of her
un-Mirandized statements did not violate the Fifth
Amendment to the United States Constitution and that, even if
the trial court erred in admitting those statements because
they were obtained in violation of defendant's rights
under Article I, section 12, of the Oregon Constitution, any
such error was harmless. We reject without further discussion
the unpreserved arguments that defendant makes in association
with her second assignment of error, including her suggestion
that we should overlook certain evidence admitted without
objection when we conduct our harmless-error analysis on the
first assignment of error. Finally, we conclude that the
trial court did not err in excluding defendant's
"danger assessment" evidence. Accordingly, we
considering whether a trial court erred in denying a motion
to suppress, we review the ruling for legal error. State
v. Krause, 281 Or.App. 143, 145, 383 P.3d 307');">383 P.3d 307 [296
Or.App, 556] (2016), rev den, 306 Or. 752 (2017). In
conducting that review, we ordinarily would be bound by the
trial court's implicit and explicit factual findings so
long as the record supported them, id., and
therefore would describe the evidence in the light favoring
the court's ruling. Here, however, we ultimately conclude
that any Article I, section 12, error associated with denial
of defendant's suppression motion was harmless. A
harmless error analysis is based on reviewing "all
pertinent portions of the record" to determine "if
there is little likelihood that [any] error affected the
verdict." State v. Wirkkala, 290 Or.App. 263,
271, 414 P.3d 421 (2018) (internal quotation marks omitted);
see State v. Simon, 294 Or.App. 840, 849, 433 P.3d
385 (2018) (similar). We therefore describe the evidence in
accordance with that standard.
Evidence Not Challenged on Appeal
begin by reviewing the pertinent evidence that was introduced
at trial, not including the evidence that was the subject of
defendant's suppression motion, which we describe later
in the opinion. Because the trial spanned five days and the
transcript is lengthy, our description of the relevant facts
necessarily summarizes and characterizes certain evidence
instead of setting it out in detail.
trial, there was no dispute that defendant shot J in the leg
after they argued and that the shooting occurred in the
couple's home, where four children, ages 13, 12, 8, and
just under 2, were present. The three older children are
defendant's from a previous marriage; J is the father of
the youngest child. The state's theory, as described in
its opening statement, was that defendant intentionally shot
J in the leg in anger following an argument, and that she
also fired other shots inside the house. The shot that struck
J shattered his femur, requiring surgery. Defendant's
theory was that she acted in self-defense, shooting J only
after he physically attacked her and one of the children.
the state's first witness at trial. He described a party
at the couple's house that involved heavy drinking and
that, after their guests left, led to him and defendant
arguing-a type of circumstance that often resulted in him
[296 Or.App, 557] packing up and leaving the
house. J testified that, on this occasion, he
told defendant that he was going to take his child and leave.
J could not find his keys, however, and he thought that
defendant had taken them. J and defendant continued arguing;
J acknowledged that he was angry and that he called defendant
testified that, as he looked through desk drawers for his
keys, defendant told him that "she should have shot
[him] a long time ago in the foot like she always said she
was going to do" if he left her or cheated on her.
Defendant said to J, "you think I won't shoot
you," he responded that defendant would not shoot
anybody, and they went back and forth that way several times.
J testified that defendant then shot him and he fell, saying
"bitch you shot me." Defendant responded,
"you're god damn right" and asserted that she
should have done it a long time ago. Yelling continued, and
according to J, defendant then fired three additional shots.
after defendant shot him, J asked defendant to call an
ambulance, but she did not. Instead, defendant pulled J's
pants off, got peroxide, and called her mother (who is a
nurse) to seek advice. Defendant went upstairs at one point
and J reached a cell phone and dialed 9-1-1. Defendant came
back down the stairs and, J testified, he threw the phone
(which ended up connecting with 9-1-1) somewhere around the
chair or the couch. Later, J heard defendant speaking to a
9-1-1 operator on another telephone, but he did not yell
because he saw lights outside indicating that police officers
had already arrived. Defendant put the gun on the desk.
Police officers called over a loudspeaker for everybody to
come outside, and officers eventually entered the house.
trial, J denied that he had ever hit or headbutted defendant.
He denied having thrown defendant to [296 Or.App, 558] the
ground on the night she shot him; he also denied ever having
thrown any of the children to the ground.
jury heard a recording of the "open line" call to
9-1-1 that J initiated shortly after he was shot, when he
placed the call and then threw the phone by a couch or chair
(before officers were dispatched):
"DISPATCHER: 911 emergency.
" [J]: How the fuck am I going to take my pants off? And
you fucking shot me in the leg.
“* * * * ”
"THE DEFENDANT: I shot you. Turn over on your back.
"[J]: I'm fucking trying. "DISPATCHER:
What's the address there?
"[J]: Ow! Stop please. * * * You fucking shot me.
"THE DEFENDANT: Damn right I fucking shot you for good
“* * * *”
"THE DEFENDANT: (Indiscernable) call any cops. I am not
going to fucking go to jail. (Indiscernable). Fuck that.
" [J]: Well why'd you shoot me then?
"THE DEFENDANT: Because you deserve it. Now roll the
fuck over. (Indiscernable).
"[J]: I'm trying."
recording continues with defendant encouraging J to roll over
and remove his pants and J exclaiming in pain. Defendant then
says more about why she shot J:
"THE DEFENDANT: (Indiscernable). I would have shot you
in the foot (indiscernable).
"THE DEFENDANT: I fucking love you. It's a crazy
"THE DEFENDANT: If I didn't love you, I wouldn't
have done it."
Or.App, 559] The 9-1-1 dispatcher was able to connect that
"open line" call with an address for defendant and
called another associated telephone number, apparently
without getting an answer. However, about 20 minutes after
the open-line call had come in, defendant called back to
dispatch. The dispatcher asked defendant what was going on at
the house and defendant responded, "Nothing that I'm
aware of." The dispatcher told defendant that 9-1-1 had
received a call from another of the phones associated with
that address, and defendant suggested that her baby might
have hit the emergency-call dial on that phone. At that point,
McClendon is one of the officers who responded. McClendon
asked dispatch to tell defendant to come out of the house
with her hands up and nothing in them. Defendant complied
with that request, she was handcuffed "based on the
information that [officers had] that somebody was possibly
shot inside the home," searched, and put in the back of
McClendon's car. McClendon then questioned defendant
about the shooting and the weapon, who remained in the house,
and why J was not coming out of the house in response to
police commands. Defendant's answers to those
questions-described later in this opinion-were the subject of
her suppression motion.
could see the children walking around inside the home. He
asked one of the older children if he could get his siblings
to come outside, and all four of the children came out to the
police cars. One child said that J had been shot in the leg
and was still inside. The officers entered the home, cleared
it, and-"once again not having any information on * * *
what exactly went on"-handcuffed J and searched his
waistline for weapons. Medics arrived and transported J to a
State Police Detective Harris Powers arrived on the scene
after defendant had been seated in the back of
McClendon's patrol car. Harris Powers introduced herself
to defendant and read her Miranda rights. The
detective asked defendant "what would be important [296
Or.App, 560] for [the detective] to know about what was
inside the house" and also asked defendant if they
"could do a walk through together, so that [defendant]
could point out * * * what would be important * * *."
During the subsequent "walk through," defendant
told Harris Powers ...