State v. Ward

188

Argued and submitted March 9; decision of Court of Appeals reversed,

judgment of circuit court reversed, and case remanded to circuit court for

further proceedings October 29, 2020

STATE OF OREGON,

Respondent on Review,

v.

MICUS DUANE WARD,

Petitioner on Review.

(CC C132352CR) (CA A163157) (SC S066598)

475 P3d 420

Defendant was indicted for aggravated and felony murder and moved to

suppress statements made during two custodial interrogations as obtained in

violation of his rights against self-incrimination under Article I, section 12, of

the Oregon Constitution. The trial court found that officers conducting the first

interrogation violated defendant’s rights by continuing to question him after he

unequivocally invoked his right to remain silent but that officers conducting the

second interrogation obtained a valid waiver of defendant’s rights under the cir-

cumstances. The Court of Appeals affirmed. Held: (1) An appellate court reviews

the question of whether a waiver of Article I, section 12, rights against self-

incrimination is knowing and intelligent, as it does the question of whether the

waiver was voluntary, as ultimately a matter of law; (2) the state failed to meet its

burden to prove that it obtained defendant’s knowing, intelligent, and voluntary

waiver before the second interrogation under the totality of the circumstances—

including the initial violation of defendant’s right to remain silent, the lack of a

complete record of the interrogation that followed that violation, and the fact that

defendant remained incarcerated following the violation for four days without

being provided counsel; and (3) the trial court’s error in admitting the statements

from the second interrogation requires reversal of defendant’s conviction.

The decision of the Court of Appeals is reversed. The judgment of the cir-

cuit court is reversed, and the case is remanded to the circuit court for further

proceedings.

En Banc

On review from the Court of Appeals.*

Bear Wilner-Nugent, Bear Wilner-Nugent Counselor &

Attorney at Law LLC, Portland, argued the cause and filed

the briefs for petitioner on review.

______________

* Appeal from Washington County Circuit Court, Rick Knapp, Judge. 295 Or

App 636, 437 P3d 298 (2019).

Cite as 367 Or 188 (2020) 189

Patrick M. Ebbett, Assistant Attorney General, Salem,

argued the cause and filed the brief for respondent on review.

Also on the brief were Ellen Rosenblum, Attorney General,

and Benjamin Gutman, Solicitor General.

Rosalind M. Lee, Rosalind Manson Lee LLC, Eugene, filed

the brief for amici curiae Oregon Criminal Defense Lawyer’s

Association and Oregon Justice Resource Center.

FLYNN, J.

The decision of the Court of Appeals is reversed. The

judgment of the circuit court is reversed, and the case is

remanded to the circuit court for further proceedings.

Balmer, J., dissented and filed an opinion.

190 State v. Ward

FLYNN, J.

Defendant was convicted of aggravated and felony

murder. After being arrested for that crime, and before

being appointed counsel, defendant was twice interrogated

while in custody. The trial court suppressed the statements

that defendant made during the first interrogation, because

the court determined that officers conducting that interro-

gation continued to question defendant after he invoked his

right to remain silent, in violation of defendant’s Article I,

section 12, rights against self-incrimination. But the trial

court refused to suppress defendant’s statements from the

second interrogation, because it determined that the officers

who conducted that interrogation obtained a valid waiver

of defendant’s Article I, section 12, rights. The trial court

thus suppressed statements that defendant made during

the first interrogation but not those he made during the sec-

ond interrogation. A jury found defendant guilty, and he was

sentenced to life in prison without the possibility of parole.

On review, taking into account the totality of the

circumstances, we conclude that the state failed to prove

that defendant validly waived his rights before the second

interrogation. Accordingly, we conclude that the trial court

erred in denying defendant’s motion to suppress, and we

further conclude that the error requires a reversal of defen-

dant’s conviction and a remand for a new trial.1

I. INTRODUCTION TO ARTICLE I, SECTION 12

Before describing the relevant facts, we describe the

basic constitutional principles that frame the dispute in this

case. Article I, section 12, of the Oregon Constitution pro-

vides that “[n]o person shall * * * be compelled in any crimi-

nal prosecution to testify against himself.” Or Const, Art I,

§ 12.2 That constitutional provision guarantees a right to

1

We also allowed review to consider whether the Eighth and Fourteenth

Amendments to the United States Constitution prohibit a trial court from impos-

ing life without the possibility of parole on a person with intellectual disabili-

ties. Because we remand for a new trial, we do not reach defendant’s sentencing

argument.

2

The Fifth Amendment to the United States Constitution is similar. It spec-

ifies that “[n]o person shall * * * be compelled in any criminal case to be a witness

against himself.” US Const, Amend V. Defendant does not separately challenge

the validity of his waiver under that federal provision.

Cite as 367 Or 188 (2020) 191

remain silent and a “derivative or adjunct right to have the

advice of counsel in responding to police questioning.” State

v. Turnidge (S059155), 359 Or 364, 399, 374 P3d 853 (2016).

As part of the constitutional guarantee, if a person in cus-

tody or other similarly compelling circumstances unequiv-

ocally invokes one of the rights guaranteed by Article I,

section 12, rights, then “police must honor that request and

stop questioning.” State v. McAnulty, 356 Or 432, 455, 338

P3d 653 (2014) (citing State v. Davis, 350 Or 440, 459, 256

P3d 1075 (2011) (“[I]f there is a right to remain silent that

is guaranteed by Article I, section 12, it is a right to insist

that the police refrain from interrogation after a person who

is in custody or otherwise in compelling circumstances has

invoked the right to remain silent.”)).

Even a person who has initially invoked those rights

may later waive them, but the state bears the burden of prov-

ing a knowing, intelligent, and voluntary waiver “under the

totality of the circumstances.” State v. Nichols, 361 Or 101,

107, 390 P3d 1001 (2017). In addition to the general “totality

of the circumstances” inquiry, to ensure that any waiver is

knowing as well as voluntary, officers must provide a person

with the so-called Miranda warnings—that the person “has

a right to remain silent and to consult with counsel and that

any statements that the person makes may be used against

the person in a criminal prosecution.”3 State v. Vondehn,

348 Or 462, 474, 236 P3d 691 (2010). Those warnings are

required for a valid waiver in part “[b]ecause a custodial

interrogation is inherently compelling.” Id.

II. FACTS AND PROCEEDINGS BELOW

With that legal overview as a guide, we describe the

pertinent facts in a manner consistent with our obligation

to accept “ ‘the trial court’s findings of historical fact if evi-

dence in the record supports them.’ ” See McAnulty, 356 Or

at 449 (quoting State v. James, 339 Or 476, 481, 123 P3d 251

(2005)).

3

Oregon’s Miranda warnings are named for the decision of the United States

Supreme Court, which requires the same warnings under the Fifth Amendment

to the United States Constitution. Vondehn, 348 Or at 470. On an independent

state-law basis, this court has required the same warnings “to effectuate the

protections afforded by Article I, section 12.” Id.

192 State v. Ward

The murder victim was the great-grandmother of

defendant’s cousin, Joda Cain, who lived with the victim

in Washington County. Before the murder, Cain had pur-

chased a plane ticket for defendant to fly from his home in

Kansas City to Portland. Defendant, who was 19 at the time

and has intellectual disabilities, boarded the plane without

identification by falsely claiming to be a minor.4 Cain and a

friend picked defendant up from the airport and took him to

the victim’s home.

The friend fell asleep at the home around midnight

and awoke to hear the victim screaming. He heard defen-

dant demanding money and heard Cain say, “Just do it.” The

friend then heard sounds of someone being attacked, and he

fled the house. The next morning, police found the victim’s

body in her bedroom. She had been beaten to death with a

small sledgehammer that police found at the scene. A trail

of blood led from the victim’s bedroom to the garage, and her

car was missing.

The same morning, a state trooper spotted the vic-

tim’s car weaving erratically on the interstate in eastern

Oregon. Cain was driving, and defendant was a passen-

ger. After a high-speed chase, police forced the car to stop

and arrested Cain. Defendant ran away but was quickly

arrested, too. Evidence in the car and blood on defendant’s

clothes tied defendant to the murder.

An officer read defendant his Miranda warnings

at the scene and then took him to the Union County Jail,

where defendant was again given Miranda warnings and

then interrogated. When one of the officers asked if defen-

dant was “going to visit with us here today at all?” defendant

gave a negative response that the officer acknowledged by

asking, “No?”5 But the officers then repeated Miranda warn-

ings and continued the interrogation by telling defendant

that Cain had decided to “be honest.” They told defendant

4

Messages offered at trial indicate that defendant did so at the direction of

Cain, but the reason for defendant’s deception is not relevant to our analysis.

5

The trial court explained that it could not determine from the interrogation

video whether defendant responded by shaking his head to indicate “no” or ver-

bally indicated that he did not want to talk, but the court found that the officer’s

“no” was verbalizing a negative response by defendant.

Cite as 367 Or 188 (2020) 193

that Cain had described the murder and car theft as entirely

defendant’s responsibility and encouraged defendant to give

his “version of events.” As described in defendant’s brief, he

“largely maintained his silence,” but made at least some

statements that the trial court suppressed.

After the interrogation, defendant was held at the

Union County Jail for four days, until two detectives from

Washington County arrived. Before driving defendant back

to Washington County, the detectives read Miranda warn-

ings to him, and defendant responded “yes” when asked if he

understood those rights. During the four- to five-hour drive

to Washington County, the detectives did not talk to defen-

dant about the case. But upon arriving at the Washington

County Sheriff’s Office, the detectives took defendant into a

“soft” interview room, meaning it was furnished more like a

living room than a typical jail interview room.

At that point, without repeating Miranda warnings

or asking defendant whether he wanted to waive his rights,

the detectives began questioning defendant. Defendant

answered questions without repeating his earlier assertion

that he did not want to talk. The detectives made no threats

or promises and described the tone of the interview as a

“very relaxed conversation.” Defendant’s ability to commu-

nicate did not appear to the detectives “to be impaired by

any sort of substance or mental problems,” and his answers

appeared to “make sense in a contextual fashion.” In

response to the questions, defendant denied knowing any-

thing about the murder, denied ever being in the victim’s

bedroom, and denied having her blood on his clothing. He

told the officers that Cain had woken him late at night ask-

ing if he wanted to go for a ride, and, when asked why he

had run after police stopped the car, defendant answered

that he was afraid he would go to jail for lying about his age

when he flew to Portland.

Defendant was eventually indicted for two counts

of aggravated murder and two counts of felony murder.

Before defendant filed the pretrial motion to suppress that

is at issue on review, the trial court conducted two other

proceedings that are pertinent to defendant’s arguments

on review. In the first, the court found that defendant was

194 State v. Ward

unfit to proceed with trial as a result of his intellectual dis-

ability and committed him to the Oregon State Hospital for

treatment. The court based that finding on the report from a

court-ordered psychological evaluation in which the author,

Dr. Stover, concluded that defendant had a “mild” intellec-

tual disability that made him unable to aid and assist his

attorney or meaningfully participate in his defense at that

time.

Nine months later, the trial court held another

hearing and determined that defendant had the capacity to

stand trial. The court based that decision on a later report

from Dr. Stover, who had concluded that defendant “gained

trial competency” through education about the legal process,

although he recommended accommodations so that defen-

dant would better understand his attorneys’ legal advice.

During the same hearing, the prosecutor confirmed that the

state would not be seeking the death penalty because it con-

ceded that defendant “does, in fact, suffer from an intellec-

tual disability” that would make it constitutionally imper-

missible to impose that penalty, under the United States

Supreme Court’s decision in Atkins v. Virginia, 536 US 304,

122 S Ct 2242, 153 L Ed 2d 335 (2002).

After the ruling that the case would proceed toward

trial, defendant moved to suppress the statements that he

had made to the officers during the first interrogation in

Union County and the second interrogation in Washington

County. The trial court agreed with defendant that the offi-

cers had violated defendant’s rights during the first inter-

rogation by continuing to question him after he made an

unequivocal invocation of his right to remain silent. But

the court determined that defendant’s statements from

the second interrogation, four days later, were admissible.

The court reasoned that defendant’s earlier invocation of

his right to remain silent did not preclude the Washington

County interrogation because a “reasonable period of time”

had passed and the interrogation was conducted by new

officers who provided new Miranda warnings before inter-

viewing defendant in a “soft room.” The court emphasized

that the officers had made “no threats or promises” and that

“there was nothing to indicate” to the officers “that there

was anything mentally or emotionally upsetting” defendant.

Cite as 367 Or 188 (2020) 195

At trial, the state introduced defendant’s statements

from the second interview and argued that the statements

were “provable lies” and, thus, evidence of defendant’s “con-

sciousness of guilt.” The jury found defendant guilty of both

aggravated murder and felony murder, and the court sen-

tenced him to life in prison without the possibility of parole.

Defendant appealed and challenged multiple trial

court rulings, including the court’s denial of defendant’s

motion to suppress the statements from his second interro-

gation. Defendant argued that the state failed to meet its

burden to prove that the second interrogation was supported

by defendant’s valid waiver of his rights under the circum-

stances of this case. He pointed to the earlier violation of

his right to remain silent when the Union County officers

ignored his invocation of that right, to the fact that he was

held in custody for days without an opportunity to obtain

legal advice (because appointment of counsel was delayed

until after his arraignment upon arriving in Washington

County), and to the fact that the renewed advice of rights

was separated in time and distance from the interrogation

in Washington County. Finally, he argued that the court

could not ignore the circumstance of his intellectual dis-

ability, which he contended made the Miranda violation, the

extended incarceration without access to legal advice, and

the lack of contemporaneous warnings more significant for

defendant than for the average person in custody. The Court

of Appeals rejected defendant’s challenges, and this court

allowed review.

III. ANALYSIS

On review, defendant renews his argument that

the trial court erred in concluding that defendant validly

waived his Miranda rights prior to the Washington County

interrogation, given “the peculiar factual circumstances of

defendant’s detention” combined with the “innate difficul-

ties” created by his intellectual disability. Defendant points

first to the officers’ failure to honor his initial invocation

of his right to remain silent, which, he argues, shaped his

understanding of Miranda rights. Defendant also points to

the fact that he was then held for four days without being

“afforded an opportunity to have counsel appointed, much

196 State v. Ward

less to meet with counsel,” and that the Washington County

interrogation took place hours after the detectives provided

the second set of Miranda warnings—rather than when

defendant’s “recollection of his rights was fresh.” Finally,

defendant argues that the “unusual sequence of events”

must be considered in the context of his “heightened suscep-

tibility to failing to understand” his rights as a result of his

intellectual disability.

The state insists that the trial court ruled correctly,

but the state also raises a threshold issue regarding the

standard by which we must review the trial court’s ruling.

We begin by addressing that preliminary issue.

A. Standard of Review

On review, the state urges a distinction between the

standard of review that applies to the question whether a

defendant waived his rights “voluntarily” and the standard

of review that applies to the question whether a defendant

waived his rights “knowingly and intelligently.” The state

argues that, in evaluating whether the trial court erred,

this court should treat as essentially a factual inquiry the

question of whether defendant knowingly and intelligently

waived his rights and should defer to the trial court’s deter-

mination in that respect.6 But appellate review of the trial

court’s waiver determination is not limited in the way that

the state contends.

As the state acknowledges, whether the circum-

stances of a particular case demonstrate a voluntary waiver

is a question of law that we review without deference to the

trial court, although we are bound by the trial court’s fac-

tual findings if there is evidence to support them. See State

v. Jackson, 364 Or 1, 21, 430 P3d 1067 (2018) (analyzing the

voluntariness of a statement as a question of law). The state

also acknowledges that we have never held that a purely fac-

tual standard applies to whether a waiver was knowing and

6

Although not entirely clear, it appears that the Court of Appeals may have

accepted the state’s characterization of the standard by which courts should

review whether a waiver was knowing and intelligent. See State v. Ward, 295 Or

App 636, 655, 437 P3d 298 (2019) (concluding that the record contains “constitu-

tionally sufficient evidence for the trial court to find that defendant had know-

ingly and voluntarily waived his right to remain silent”).

Cite as 367 Or 188 (2020) 197

intelligent. However, the state views the standard of review

for whether a waiver was knowing and intelligent as an open

question, and it urges us to follow the Ninth Circuit, which

has described as “essentially a question of fact” whether a

waiver of federal Miranda rights was knowing and intelligent.

U.S. v. Doe, 155 F3d 1070, 1074 (9th Cir 1998); see also U.S.

v. Rodriguez-Preciado, 399 F3d 1118, 1127 (9th Cir 2005). Of

course, we are not bound by decisions of the Ninth Circuit—

or any other federal circuit—even on questions of federal law.

State v. Moyle, 299 Or 691, 707, 705 P2d 740 (1985); see also

Van De Hey v. U.S. National Bank, 313 Or 86, 95 n 9, 829 P2d

695 (1992) (“only decisions of the Supreme Court of the United

States are binding on this court in the interpretation of fed-

eral law”).7 Thus, we understand the state to cite Rodriguez-

Preciado merely as an example of persuasive analysis that

this court should adopt for purposes of Article I, section 12.

We agree with the state’s implicit premise—and

that of the Ninth Circuit—that the inquiry into whether a

waiver is knowing and intelligent can be distinct from the

inquiry into whether the waiver was voluntary. See State v.

Haynes, 288 Or 59, 64-65, 602 P2d 272 (1979) (“[K]nowledge

of these [Article I, section 12,] rights is not conclusive on the

separate issue of voluntariness.”); see also State v. Joslin,

332 Or 373, 386, 29 P3d 1112 (2001) (“[D]efendant’s waiver

of that right under Article I, section 12, although voluntary,

was not knowingly made and, therefore, was invalid.”). We

also emphasize that, regardless of whether the “knowing

and intelligent” component of a valid waiver is—like the

voluntariness component—a legal determination, the deter-

mination in a particular case will be based on underlying

factual findings by which this court is bound if there is any

evidence to support them. See Jackson, 364 Or at 21 (articu-

lating rule with respect to voluntariness determination).

7

With respect to issues arising under Article I, section 12, we have some-

times looked for guidance to Fifth Amendment decisions of the United States

Supreme Court, “particularly” because that court first required “the warnings

that this court later required to effectuate the protections afforded by Article I,

section 12.” Vondehn, 348 Or at 470. But Vondehn also makes clear that we must

independently determine the scope of Article I, section 12, rights and, indeed,

reached a different conclusion about the significance of a Miranda violation

under Article I, section 12, than the US Supreme Court had reached under the

Fifth Amendment. Id. at 475-76.

198 State v. Ward

But the state fails to explain why we should be

persuaded by the Ninth Circuit’s rule that only one part

of the valid-waiver test involves a legal question. Indeed,

Rodriguez-Preciado provides no analysis for its rule that

“knowingly and intelligently,” unlike “voluntarily,” should

be reviewed as a factual determination. Nor does the case

on which Rodriguez-Preciado relied, Collazo v. Estelle, 940

F2d 411, 416 (9th Cir 1991), or the case on which Collazo

relied, Derrick v. Peterson, 924 F2d 813, 823 (9th Cir 1990),

overruled on other grounds by U.S. v. Preston, 751 F3d 1008

(9th Cir 2014).

If this court has never expressly rejected the state’s

proposed bifurcated standard of review for the three compo-

nents of a valid waiver, we do so now. This court’s Article I,

section 12, case law has treated the question of whether a

waiver of constitutional rights was “knowing and intelli-

gent” as ultimately a question of law, just as the question of

whether the waiver is voluntary is ultimately a question of

law. For example, in State v. Singleton, 288 Or 89, 602 P2d

1059 (1979), this court considered whether the defendant,

who initially invoked his Miranda rights, validly waived

those rights at a later point. After describing it as the state’s

burden “to demonstrate that the defendant knowingly and

intelligently waived” his Article I, section 12, rights, this

court explained that “the question of waiver is not simply a

question of historical fact, but one which requires the appli-

cation of constitutional principles to the facts as found.”

Id. at 104. This court then considered “the historic facts of

this case in the light of the constitutional standards” and

held that the defendant “made a knowing and intelligent

waiver” of his constitutional rights. Id. at 108-09.

As our approach in Singleton illustrates, we review

whether the state has proven a valid waiver as ultimately a

legal question—“the application of constitutional principles

to the facts as found”—even when the dispute focuses on

whether the defendant “knowingly and intelligently” waived

his Article I, section 12, rights. Id. at 104. See also Haynes,

288 Or at 70 (identifying information that, under certain

circumstances, police categorically must provide to permit

a determination that the defendant “knowingly and intelli-

gently” waived Article I, section 12, right to counsel); State v.

Cite as 367 Or 188 (2020) 199

Acremant, 338 Or 302, 321, 108 P3d 1139 (2005) (describing

a single standard of review for whether a waiver is “knowing,

intelligent, and voluntary under the totality of the circum-

stance”—that, “[a]lthough we are bound by its findings of his-

torical fact, we review a trial court’s conclusions regarding

a defendant’s waiver of the right to counsel for legal error”).

Moreover, reviewing as a question of law all requirements

for a valid waiver of Article I, section 12, rights aligns with

how this court reviews other questions that bear on whether

officers have honored those rights. See State v. Avila-Nava,

356 Or 600, 609, 341 P3d 714 (2014) (“[W]hether a defen-

dant’s statements amounted to an unequivocal invocation of

the right against self-incrimination, an equivocal invocation,

or no invocation at all, is a question of law,” although “what a

defendant said or did not say, is a question of fact.”).

The state, nevertheless, argues that treating the

knowledge requirement for a valid waiver as a question

of fact is analogous to how we treat other “questions of a

person’s awareness and understanding.” The state points,

as examples, to cases that identify questions regarding a

criminal defendant’s mental state or condition as a ques-

tion of fact for the jury to decide. See State v. Herrera, 286

Or 349, 360, 594 P2d 823 (1979) (“[T]he decision of whether

the defendant has a mental disease or defect [for purposes

of affirmative defense] is a question of fact for the jury” if

there is enough evidence “to permit reasonable persons to

conclude that the evidence preponderates in favor of a find-

ing of mental disease or defect.”); State v. Wolleat, 338 Or

469, 478, 111 P3d 1131 (2005) (in context of discussing the

mental state element of kidnapping, explaining that, “in

most cases the question of whether the defendant intended

to interfere substantially with the victim’s liberty will pres-

ent a question of fact for the jury”).

But those examples do not involve the standard

for proving a waiver of a constitutional right. Rather, they

describe statutory elements that must be proven for a jury to

find a defendant guilty or not guilty of a crime—an inquiry

that is inherently factual. See State v. Lotches, 331 Or 455,

498, 17 P3d 1045 (2000) (explaining that this court reviews a

jury’s finding of guilt “solely to determine whether a rational

factfinder, viewing the evidence in the light most favorable to

200 State v. Ward

the state, and accepting all reasonable inferences and cred-

ibility choices, could find the elements of the crime beyond a

reasonable doubt”). By contrast, the question here involves

whether the police violated defendant’s constitutional rights

by interrogating him without obtaining a valid waiver. As

our past decisions indicate, we determine the answer to that

ultimate question as a matter of law, although we defer to

the trial court’s findings of the underlying historical facts.

Acremant, 338 Or at 321.

B. The Framework for Analyzing this Case

As we have explained above, a defendant’s state-

ments obtained during a custodial interrogation are admis-

sible only if the state proves that the defendant was given

Miranda warnings and made a knowing, intelligent, and

voluntary waiver of those rights under the totality of the cir-

cumstances. Nichols, 361 Or at 107.8 We emphasize “total-

ity” because the opinion of the Court of Appeals and the

arguments advanced by the state both highlight individual

circumstances that, in isolation, might demonstrate that

defendant validly waived his Article I, section 12, rights.

The Court of Appeals first considered the impact

of the earlier violation by asking if it “tainted” defendant’s

later statements to the extent that they “cannot properly be

seen as the product of a truly voluntary waiver of the right

against self-incrimination.” State v. Ward, 295 Or App 636,

650, 437 P3d 298 (2019). The court answered that question

by applying the standard that this court has established for

determining whether a defendant’s statements—or other

evidence—must be suppressed solely as the product of the

earlier constitutional violation. Id. at 650-53 (quoting and

discussing State v. Jarnagin, 351 Or 703, 713-18, 277 P3d

535 (2012)). After concluding that the violation was not

sufficiently egregious to require suppression by itself, the

Court of Appeals looked separately at the delay between the

8

In addition to determining whether the state proved a valid waiver of

Article I, section 12, rights, some cases require a separate inquiry into whether

statements following a waiver were voluntary. See McAnulty, 356 Or at 459

(analyzing validity of waiver and “voluntariness” of subsequent statements

separately); Acremant, 338 Or at 321-25 (2005) (same). We do not understand

defendant to contend that his statements were involuntary apart from his waiver

argument.

Cite as 367 Or 188 (2020) 201

Miranda warnings that the officers read immediately before

driving defendant to Washington County and the interro-

gation that occurred several hours later. Id. at 654. With

respect to that temporal gap, the court considered whether

“a reasonable person could believe that his or her rights have

changed since the time they were originally given,” and the

court concluded that the “circumstances did not require the

police to readminister Miranda warnings closer in time to

the interrogation.” Id. at 654-55.

That analytical framework presents several chal-

lenges. First, Jarnagin expressly cautioned that the stan-

dard the Court of Appeals quoted does not apply to cases in

which the question is whether the defendant validly waived

his rights despite an earlier violation; rather, the standard

“applies to derivative statements; * * * a different calculus

applies when a defendant remains in custody and officers

seek to remedy an earlier Miranda violation.”9 351 Or at 716

n 8. As we have emphasized, when the state contends that

a defendant validly waived his rights despite an earlier vio-

lation, “there is a presumption that the waiver was invol-

untary and the state has a ‘heavy burden’ to demonstrate

that the defendant knowingly and intelligently waived

those rights.” Singleton, 288 Or at 104. Second, by limiting

the inquiry to whether the Washington County statements

were the product of a voluntary waiver, the Court of Appeals

overlooked the extent to which an earlier violation can affect

whether a later waiver is knowing and intelligent, as well

as voluntary. We have emphasized that a particular harm

that occurs when police have refused to honor a suspect’s

invocation of Article I, section 12, rights is that the violation

9

Although the resolution of this case ultimately does not turn solely on the

effect of the initial violation, we caution that the Court of Appeals’ application

of the Jarnagin factors may have underestimated the significance of the Union

County violation on defendant’s later decision to speak with the Washington

County officers. For example, the court reasoned that the nature of the violation

in this case was not especially “flagrant,” Ward, 295 Or App at 651, but this court

has strongly suggested that such a conclusion should be limited to violations that

consist of “the officers fail[ing] to recognize that the circumstances had become

sufficiently compelling to require Miranda warnings.” State v. Swan, 363 Or 121,

133, 420 P3d 9 (2018) (quoting Jarnagin, 351 Or at 717). As we emphasized in

Swan, “by contrast” to cases like Jarnagin, when officers ignored the defendant’s

invocation of his Article I, section 12, right to counsel and asked numerous ques-

tions, “the violation was flagrant and repeated.” Id. at 134.

202 State v. Ward

may have “created the impression that the assertion of one’s

rights was meaningless.” State v. Foster, 288 Or 649, 656,

607 P2d 173 (1980). Finally, considering whether the vio-

lation, alone, or the delay, alone, requires suppression of

defendant’s Washington County statements falls short of

the question that ultimately concerns the court: whether

the state proved, under the totality of the circumstances,

that defendant made a knowing, intelligent, and voluntary

waiver of the Article I, section 12, rights at the time of the

Washington County interrogation. See Nichols, 361 Or at

107 (describing standard).

In addressing that question, the state’s arguments

in this court continue to focus too narrowly on only some

of the relevant circumstances. Specifically, the state argues

that it established a valid waiver with the evidence that

defendant answered questions after having been advised of

his Miranda rights and having indicated that he understood.

If the state were drawing on a clean slate—without an ear-

lier refusal to honor defendant’s invocation of rights—then

the state might be correct that it could prove a valid waiver

with that evidence alone. See Nichols, 361 Or at 108 (con-

cluding that those circumstances proved a valid waiver but

emphasizing that “nothing in the record suggests a lack of

knowledge, consent, or voluntariness about that decision”);

but see James, 339 Or at 488-89 (rejecting suggestion that

a suspect’s statements made after Miranda warnings are

“presumptively admissible”); Joslin, 332 Or at 383 (waiver

not knowing and intelligent when officers failed to advise

defendant both that “an identified lawyer has been hired or

appointed and is seeking to consult with a suspect who is

subject to custodial interrogation”). But the slate here was

not clean. The state’s argument fails to give adequate weight

to the violation that preceded the Washington County inter-

rogation, a circumstance that the state bears a “heavy bur-

den” to overcome. See Singleton, 288 Or at 104.

When a suspect in custody exercises the right to

remain silent, police must “scrupulously honor” that request.

McAnulty, 356 Or at 461 (quoting Michigan v. Mosley, 423

US 96, 104, 96 S Ct 321, 46 L Ed 2d 313 (1975)); Singleton,

288 Or at 102 (same). When the prior violation consists of

a failure to scrupulously honor a defendant’s invocation of

Cite as 367 Or 188 (2020) 203

his Article I, section 12, rights, it can have a particularly

significant impact on a defendant’s later decision to answer

questions. See State v. Swan, 363 Or 121, 133-34, 420 P3d 9

(2018) (highlighting the distinction as affecting whether

the violation is “egregious or flagrant” for purposes of deter-

mining if defendant’s statements were tainted by an ear-

lier Miranda violation); Jarnagin, 351 Or at 717 (same). Of

particular concern, it can “create[ ] the impression that the

assertion of one’s rights was meaningless.” Foster, 288 Or at

656. Thus, if the state fails to “scrupulously honor” a defen-

dant’s invocation of the right to remain silent, as we empha-

sized in Singleton, then the state bears a “heavy burden”

to prove “that the defendant has subsequently waived those

rights.” 288 Or at 104.

In those cases in which we have held that the state

proved a valid waiver despite a prior violation, we have

pointed to countervailing circumstances that are absent

from this record. For example, in concluding that the defen-

dant in McAnulty had twice validly waived her Miranda

rights following an earlier violation, we emphasized that

the defendant first initiated the renewed conversation by

asking to speak privately with the officers because “she had

something to tell them.” 356 Or at 453, 459. We also empha-

sized that, when the officers next interrogated the defen-

dant in McAnulty, they had freshly advised the defendant

of her Miranda rights immediately before the interrogation,

and she had signed a form expressly acknowledging that

she understood those rights. Id. Likewise in Jarnagin, in

which we concluded that the defendant had validly waived

his rights following an earlier unlawful interrogation, the

defendant had agreed to be transported from his home to

the police station to be interviewed and, upon arriving, was

given Miranda warnings, signed a written consent, and

made clear that he understood his rights by volunteering

that he could “at any time, decide that [he] would like a law-

yer or not answer any further questions.” 351 Or at 712, 724.10

10

In addition, as we highlighted in Swan, the Miranda violation in Jarnagin

consisted of the less “egregious” failure “to recognize that the circumstances

had become sufficiently compelling to require Miranda warnings.” 363 Or at 133

(quoting Jarnagin, 351 Or at 717). Thus, Jarnagin identified the issue as “when

belated Miranda warnings will and will not suffice.” 351 Or at 721.

204 State v. Ward

Indeed, we have pointed to similar circumstances as aiding

the state’s ability to prove a valid waiver, even in the absence

of a prior constitutional violation. See State v. Meade, 327 Or

335, 341-42, 963 P2d 656 (1998) (even without a prior vio-

lation, affirmative waiver immediately following adminis-

tration of Miranda warnings was “significant” to conclusion

that the defendant validly waived his rights).

Here, however, the state can identify no similar cir-

cumstances that would aid the state in carrying its burden

to overcome the harm of the prior violation. Defendant did

not voluntarily travel to the Washington County interroga-

tion room or in any way initiate a conversation about the

crime. Although defendant answered “yes” when asked if

he understood his rights, the state cannot point to the kind

of affirmative statements that, in Jarnagin, demonstrated

that the defendant had a meaningful understanding of the

words that had been recited to him.11 And the state cannot

point to evidence that defendant affirmatively consented to

be interrogated or affirmatively waived his rights. Indeed,

the only evidence of officers asking defendant whether he

wanted to speak with them is the evidence from Union

County, and defendant’s answer to those officers was that

he did not want to talk.

Another circumstance that can ease the state’s bur-

den following a violation of a defendant’s Article I, section 12,

rights is a sufficient gap in time—at least if the gap is fol-

lowed by fresh Miranda warnings. See Jarnagin, 351 Or

at 722-23 (emphasizing the “substantial break in time”—

during which the defendant remained with a friend in his

own home—before he agreed to be interviewed at the police

station, was given fresh warnings, and affirmatively con-

sented to waive his rights). Here, the state emphasizes that,

following the violation of defendant’s rights, four days passed

before the detectives provided new Miranda warnings, drove

11

We do not suggest that an inquiry into a defendant’s degree of compre-

hension is required in the ordinary case. Indeed, in a case that did not involve

overcoming the harm of a prior violation, we observed that “asking an accused

whether he understands the warning given him does very little, if anything,

to guarantee his understanding” and that “[w]e do not believe such an inquiry

and an affirmative response is necessary in order to assure compliance with

Miranda.” State v. Karcher, 252 Or 564, 566-67, 451 P2d 110 (1969).

Cite as 367 Or 188 (2020) 205

defendant to Washington County, and began a new interro-

gation. Given those circumstances, according to the state,

“any taint had long since dissipated.” But the state overlooks

countervailing factors that undermine the value of the gap

in time and fresh warning in this case.

First, any value that the passage of time might

normally provide was diluted in this case by the fact that

defendant was held in jail during that entire time without

the benefit of advice from counsel. See Foster, 288 Or at

656-57. As we emphasized in Foster, in concluding that a

waiver following a previous violation was not valid, the defen-

dant had been held in custody “for over 30 hours” without

the benefit of legal advice that the defendant had requested.

Id. Similarly, in State v. Mendacino, we explained that the

72-hour gap between an unlawful interrogation and a later

interrogation—preceded by fresh Miranda warnings—was

insufficient to dissipate harm of the earlier violation because

the defendant remained in jail and did not consult with an

attorney between the interrogations. 288 Or 231, 238, 603

P2d 1376 (1979). Here, the state has offered no reason to

conclude that the days of incarceration did anything to min-

imize the harm from the earlier violation.

Second, any value that the fresh Miranda warn-

ings might normally have provided was undermined by the

fact that the detectives gave those warnings at the start of

the five-hour trip to Washington County. We agree with the

Court of Appeals that a short delay and change of location,

alone, generally will not preclude the state from proving a

valid waiver. See State v. Stevens, 311 Or 119, 138, 806 P2d

92 (1991) (“mere transfer to another car and another officer

did not necessarily require” renewed Miranda warnings).12

But this is not a case in which delay and a change of location

are the only obstacles to the state proving a valid waiver.

Instead, the relevant circumstances, here, began with the

officers in Union County ignoring defendant’s invocation

of his right to remain silent, then holding him in jail for

12

In Jarnagin, we quoted LaFave for the proposition that it is “generally

accepted that fresh warnings are not required after the passage of just a few

hours.” 351 Or at 725 (quoting Wayne R. LaFave, Jerold H. Israel, Nancy J. King,

& Orin S. Kerr, 2 Criminal Procedure § 6.8(b), 805 (3d ed 2007)).

206 State v. Ward

four days without the opportunity to speak with counsel.

Thus, the question here is whether the manner in which

the Washington County detectives provided new warnings

was sufficient to overcome the harm of the prior violation—

the impression that invoking Article I, section 12, rights is

meaningless. See Foster, 288 Or at 656. Under the totality

of the circumstances, the poorly timed warnings did little to

help the state meet its burden.

Third, the state’s ability to meet its burden is

impaired by the limited record of what transpired as a

result of the Miranda violation. Both parties in briefing

have offered a general characterization of defendant’s state-

ments after he invoked his right to remain silent, but—as

the Court of Appeals observed—“[t]he precise nature of

those statements is uncertain based on the record from

the suppression hearing.” Ward, 295 Or App at 649 n 7. We

addressed a similar record deficiency in Swan, in which we

considered whether the state had met its burden to show

that the defendant’s decision to take a breath test was not

the product of a DUII interview that the state conducted in

violation of the defendant’s Article I, section 12, rights. 363

Or at 133. The obstacle for the state in Swan was that there

was no evidence of what the defendant said during the DUII

interview and so “no way of knowing whether or how [the]

defendant’s decision to take the test was causally connected

to his earlier responses.” Id. at 136. Given the absence of evi-

dence, we concluded that the state failed to meet its burden.

Id.

The record in this case presents a similar obsta-

cle for the state. As the Court of Appeals noted, the record

reveals that the state played a video recording of the unlaw-

ful Union County interrogation only up to a point shortly

after defendant invoked his right to remain silent, and

“[t]here is no indication that the court also was provided with

a transcript of the interrogation or otherwise reviewed what

defendant said to the police after invoking his rights under

Miranda.” Ward, 295 Or App at 649 n 7. Thus, when the

trial court ruled at the conclusion of the suppression hear-

ing that defendant provided a knowing, intelligent, and vol-

untary waiver, it necessarily did so with “no way of knowing

whether or how” statements that defendant or the officers

Cite as 367 Or 188 (2020) 207

made during the earlier, unlawful interrogation affected

defendant’s decision to answer questions when he reached

Washington County. See Swan, 363 Or at 136. Accordingly,

we cannot assume that the court made any implicit findings

regarding the course of the unlawful interrogation that could

help the state meet its heavy burden to prove that defen-

dant subsequently validly waived his Article I, section 12,

rights.

Finally, defendant argues that all of the other cir-

cumstances that he has identified as preventing proof of a

valid waiver must be filtered through the lens of his estab-

lished intellectual disability, which he describes as creat-

ing a “heightened susceptibility” to not understanding his

rights. In general, we agree that a defendant’s mental lim-

itations should be considered when determining whether

the defendant made a knowing, intelligent, and voluntary

waiver under the totality of the circumstances. See Jackson,

364 Or at 30 (“a defendant’s mental condition is a factor

that must be considered, as part of the totality of the cir-

cumstances, in determining whether a defendant’s confes-

sion was voluntary”); see also Meade, 327 Or at 341 (even

without a prior violation, identifying as “significant” to valid

waiver inquiry the fact that the defendant was “highly edu-

cated”). The state contends, however, that defendant failed

to preserve this argument regarding his mental disability.

Defendant offers a complicated response that relies on a

statement in one written memorandum that his challenge

to the Washington County interrogation “incorporated by

reference” arguments from an earlier memorandum and on

the fact that the judge who decided the suppression motion

had earlier presided over the hearings regarding defen-

dant’s competence to stand trial. He urges this court to

analyze the record below in light of the purposes of pres-

ervation. We decline to undertake that analysis, however,

because we conclude that this case does not turn on the

role of defendant’s intellectual disability. Considering all

of the other circumstances that we have identified—from

the Union County officers’ failure to honor defendant’s ini-

tial invocation of his right to remain silent, which shaped

his understanding of his rights; to the extended period of

incarceration without counsel; to the significant separation

208 State v. Ward

by time and distance between new Miranda warnings and

the interrogation in Washington County; to the absence of

evidence that defendant initiated conversation or affirma-

tively waived his rights—we are persuaded that the state

failed to prove that it obtained defendant’s knowing, intelli-

gent and voluntary waiver of his Article I, section 12, rights

before the Washington County custodial interrogation.13

Accordingly, the trial court erred in denying defendant’s

motion to suppress his statements from the Washington

County interrogation.

C. Significance of the Erroneously Admitted Statements

We also conclude that the error is one that requires

us to reverse defendant’s conviction. That determination is

governed by Article VII (Amended), section 3, of the Oregon

Constitution, which provides, in part:

“If the supreme court shall be of opinion, after consider-

ation of all the matters thus submitted, that the judgment

of the court appealed from was such as should have been

rendered in the case, such judgment shall be affirmed, not-

withstanding any error committed during the trial[.]”

Or Const, Art VII (Amended), § 3. We have described our

obligation under that provision as one “to decide whether

there was ‘little likelihood’ that the error affected the jury’s

verdict.” McAnulty, 356 Or at 460 (quoting State v. Davis,

336 Or 19, 32, 77 P3d 1111 (2003)). In McAnulty, we con-

cluded that the erroneous admission of some of the defen-

dant’s statements did not require reversal “on the particular

facts” of that case because the illegally obtained statements

13

This case does not call upon us to specify where the state fell short in its

proof of a knowing, intelligent, and voluntary waiver. Although we have occasion-

ally described a waiver as invalid solely because it was not voluntary or solely

because it was not knowingly made, we have also identified circumstances that

affect all three components of a valid waiver. See, e.g., Vondehn, 348 Or at 474

(Miranda warnings “ensure that a person’s waiver is knowing as well as volun-

tary”). Our discussions in Singleton and Foster suggest that ignoring a suspect’s

assertion of Article I, section 12, rights can similarly affect all three components

of the inquiry. Foster, 288 Or at 656-57 (explaining that the violation “created the

impression that the assertion of one’s rights was meaningless”); Singleton, 288

Or at 104 (“when in such a case it is contended by the state that the defendant

has subsequently waived those rights there is a presumption that the waiver was

involuntary and the state has a ‘heavy burden’ to demonstrate that the defendant

knowingly and intelligently waived those rights”).

Cite as 367 Or 188 (2020) 209

described the same kind of abusive conduct against the vic-

tim that the defendant later described in legally obtained

statements that we described as “more substantial admis-

sions” of abuse of the victim. Id. at 460-61. Indeed, we con-

cluded that the erroneous admission was “harmless beyond

a reasonable doubt” (the federal constitutional standard).

Id. at 462. We reasoned that “the jury would have regarded

the improperly admitted evidence as duplicative or unhelp-

ful,” relying on but distinguishing Davis, in which this court

reversed after concluding that erroneously excluded evi-

dence was “influential because it substantiated the defen-

dant’s version of events,” was not “ ‘duplicative or unhelpful’

to the jury,” and was “not cumulative, because the excluded

evidence was ‘qualitatively different than the evidence that

the jury heard.’ ” Id. at 460-61 (quoting Davis, 336 Or at

33-34).

Here, defendant explains that his illegally obtained

statements consisted of a series of easily disproven factual

assertions, including denying that he had ever been in the

victim’s room and denying that the victim’s blood had been

on his clothing. Defendant emphasizes that the value to the

state of offering defendant’s denials of easily proven facts

was that they tended to indicate defendant’s consciousness

of guilt. Indeed that is precisely the use that the state made

of the evidence: The prosecutor argued to the jury in closing

that “provable lies still are an indicator of one’s consciousness

of guilt” and added, “[W]ho lies to police, innocent people or

guilty people? I think you’ll all agree guilty people do.” As

in Davis, we conclude that the illegally obtained statements

provided the jury with evidence of defendant’s mental state

that was qualitatively different than the other evidence that

the state presented and tended to substantiate the state’s

theory that not only was defendant in the victim’s room, but

he also actively participated in the victim’s murder. Under

the circumstances, we cannot conclude that there was “little

likelihood” that the error affected the verdict. Accordingly,

we reverse and remand.

The decision of the Court of Appeals is reversed.

The judgment of the circuit court is reversed, and the case

is remanded to the circuit court for further proceedings.

210 State v. Ward

BALMER, J., dissenting.

I respectfully dissent. The facts of this case are

tragic. The evidence at trial showed that defendant, who

has intellectual disabilities, likely was manipulated by

his cousin, Joda Cain, to engage in criminal conduct with

Cain during which defendant killed the victim—Cain’s

great-grandmother—with a hammer. A jury convicted defen-

dant of aggravated murder and felony murder, and he was

sentenced to life in prison without possibility of parole.

The majority reverses defendant’s convictions and

remands the case for a new trial; as a result, it does not

reach defendant’s constitutional challenges to his sentence.

The majority concludes that the trial court, although it

granted defendant’s motion to suppress statements that

he made during an October 5, 2013, interview with police,

erred in denying the motion as to statements during a sec-

ond interview on October 9. It also concludes that the error

was not harmless. I disagree with both of those conclusions.

The sequence of events concerning defendant’s state-

ments is straightforward. On October 5, 2013, the night

that the victim was killed in Washington County, Cain and

defendant were apprehended in eastern Oregon after a high-

speed car chase. Police read defendant his Miranda rights

at the time of his arrest. Defendant acknowledged that he

understood those rights. Later that night, police interviewed

defendant at the Union County Jail and again administered

Miranda warnings. They had already talked to Cain, who

told them that defendant had killed the victim. The police

asked whether defendant wanted to talk, and although he

indicated that he did not, they nevertheless asked him for

his side of the story. Defendant denied any wrongdoing. On

October 9, two detectives arrived from Washington County

to return defendant to Hillsboro. Those officers also gave

defendant Miranda warnings. As the majority notes, defen-

dant said that he understood his rights, but he did not indi-

cate whether he wanted to talk. No questioning occurred

during the five-hour drive. Back in Washington County

later that day, defendant was interviewed in the sheriff’s

office. The officers did not repeat the Miranda warnings

or ask defendant whether he wanted to waive his rights.

Cite as 367 Or 188 (2020) 211

Defendant responded to the officers’ questions. His answers

were consistent with his more general response during the

October 5 interview—that he didn’t do anything wrong.

On defendant’s motion to suppress his statements,

the trial court concluded that the October 5 statements

should be suppressed because he had indicated to the offi-

cers that he did not want to talk, and they had improperly

continued their questioning after that refusal. As to the

October 9 statements, the trial court concluded that “defen-

dant’s Miranda rights were appropriately read to him” by

the Washington County officers, that “he understood those

rights,” and that he “knowingly waived” them.

The Court of Appeals affirmed the trial court ruling.

State v. Ward, 295 Or App 636, 437 P3d 298 (2019). It recog-

nized the factors that we identified in State v. Jarnagin, 351

Or 703, 277 P3d 535 (2012), as being critical to the assess-

ment of whether the waiver of the right to remain silent was

“truly voluntary.” Ward, 295 Or App at 650. It specifically

noted that “a Miranda waiver may be tainted by a prior

Miranda violation.” Id. Determining whether such a taint

exists “is fact intensive” and requires the court to decide,

“ ‘considering all the circumstances,’ ” whether a defendant’s

decision to speak to officers “ ‘is sufficiently a product of an

earlier Miranda violation that suppression is necessary to

vindicate’ ” the defendant’s rights. Id. (quoting Jarnagin, 351

Or at 717). As to the impact of the October 5 Miranda viola-

tion, the court noted that the violation was “not especially

‘flagrant’ ” or coercive, compared to other cases where a later

waiver was held to be involuntary; the officers had not used

“flagrantly coercive tactics in an effort to elicit an incrimi-

nating response.” Ward, 295 Or App at 651. Indeed, “defen-

dant maintained his innocence throughout the exchange

and made no patently inculpatory remarks.” Id. The court

carefully examined each of the Jarnagin factors, id. at

651-54, as well as defendant’s argument that the delay

between the Miranda warnings given the morning of October 9

and the interview five hours later constituted an Article I,

section 12, violation, id. at 654-55. It discussed in detail the

trial court record, comparing the facts in the case to earlier

cases from this court and the Court of Appeals. It under-

stood that it was required to base its determinations on the

212 State v. Ward

totality of the circumstances. Id. at 650, 654, 655. The Court

of Appeals did everything our precedents ask of it.

The Court of Appeals ultimately concluded that

defendant’s October 9 statements were not derived from

or the product of the October 5 Miranda violation and that

police were not required to give additional Miranda warn-

ings later on October 9, after the initial warning before the

drive. Id. at 655. The court concluded that there was “consti-

tutionally sufficient evidence for the trial court to find that

defendant had knowingly and voluntarily waived his right

to remain silent on October 9.” Id.

When the Court of Appeals has applied what is

essentially the correct legal standard, the fact that this

court might disagree with the lower court’s application

of the law to the facts of a particular case is usually not

a reason to allow review. That is simply “error correction,”

because the case does not necessarily “present[ ] a signifi-

cant issue of law.” ORAP 9.07(1). To be sure, we sometimes

do allow review simply in order to correct errors by lower

courts, including the Court of Appeals, and I do not disagree

with that practice. But we should do so sparingly, and I do

not think we should have allowed review here.

That said, the majority does provide some clarifica-

tion of the proper consideration of whether a waiver of rights

under Article I, section 12, of the Oregon Constitution is “vol-

untary,” “knowing,” and “intelligent.” 367 Or at 196-200. As

with many other determinations that trial courts and juries

make, and that appellate courts are charged with review-

ing, those determinations may “ultimately” be legal ques-

tions that courts review for “legal error.” However (as the

majority recognizes), those legal conclusions are crucially

based on facts—evidence and permissible inferences and

presumptions—that are found by factfinders. And, as the

majority again correctly observes, we are bound to accept

those underlying factual findings “if there is any evidence

to support them.” 367 Or at 197. I agree with the majority’s

description of those distinctions.

But the majority discusses those issues primarily to

reject the state’s arguments to this court. The majority faults

the Court of Appeals’ approach to the Article I, section 12,

Cite as 367 Or 188 (2020) 213

analysis, stating that it “may have accepted the state’s charac-

terization” of the “knowing and intelligent” inquiry as essen-

tially factual, and thus subject to a more deferential standard

of review. 367 Or at 196 n 6. It reaches that conclusion based

on the Court of Appeals’ statement that there was “constitu-

tionally sufficient evidence for the trial court to find” a know-

ing and voluntary waiver. Id. (quoting Ward, 295 Or App at

655). That is not a very charitable reading of the Court of

Appeals’ decision. Perhaps the Court of Appeals should have

said that there was a “sufficient factual basis for the trial

court to reach the legal conclusion that defendant had made

a knowing, intelligent, and voluntary waiver.” That, after all,

is what the Court of Appeals plainly meant when it used the

sentence quoted by the majority to sum up its previous nine

pages of detailed analysis of the factual record and the con-

trolling case law. More importantly, the approach taken by

the Court of Appeals—the consideration of the various fac-

tors we identified in Jarnagin and the comparison to cases

such as State v. Mendacino, 288 Or 231, 603 P2d 1376 (1979),

and State v. McAnulty, 356 Or 432, 338 P3d 653 (2014)—is

essentially the same kind of careful review that the major-

ity undertakes. The majority gives greater weight to certain

facts than the Court of Appeals did, and, as a result, reaches

a different legal conclusion.1 But, in my view, little in the

majority opinion articulates a substantially different rule of

law than the Court of Appeals applied or identifies a serious

analytical error, other than that court’s ultimate legal con-

clusion regarding the validity of defendant’s waiver.

Of course, it is within the authority of this court to

review Court of Appeals’ legal rulings, including its

1

For example, the majority, although agreeing with the Court of Appeals

that resolution of the Miranda issue “does not turn solely on the effect of the ini-

tial violation,” nevertheless concluded that that court “may have underestimated

the significance” of the earlier violation. 367 Or at 201 n 9. Similarly, the majority

acknowledges that the Court of Appeals considered both the possible taint from

the earlier Miranda violation and the delay between the new Miranda warnings

given before the drive to Washington County and the questioning several hours

later, but it nevertheless asserts that the Court of Appeals failed to consider those

factors together as part of the “totality of the circumstances.” 367 Or at 202. But

the Court of Appeals did understand that it was required to determine whether

defendant’s waiver was “knowing, intelligent, and voluntary under the totality of

the circumstances,” Ward, 295 Or App at 650 (internal quotations omitted), and

it appears to me that it did so.

214 State v. Ward

application of legal standards to specific circumstances. I

agree with the Court of Appeals’ assessment of the totality

of the circumstances as meeting the standard required for a

valid waiver. But the legal issue is a close one, and although

the majority reaches a different conclusion, its legal analysis

does not appear to me to differ significantly from that of the

Court of Appeals. For that reason, we probably should not

have allowed review of this case.

I turn to the question of whether the error found by

this court—the trial court’s failure to suppress defendant’s

statements during the October 9 interview—was preju-

dicial, that is, whether there was little likelihood that the

error affected the jury’s verdict. McAnulty, 356 Or at 460.

The majority sets out defendant’s statements: that

he didn’t know anything about the murder, hadn’t been in

the victim’s bedroom, and didn’t have the victim’s blood on

his clothes; that Cain had awakened him at night and asked

if he wanted to go for a ride; that he had run when he and

Cain were stopped by police in eastern Oregon because he

was afraid he would go to jail for lying about his age when

he had flown to Portland. 367 Or at 193. The majority con-

cludes that, because defendant’s statements were lies that

could easily be disproved, they indicated defendant’s “con-

sciousness of guilt,” id. at 209, and thus “tended to substan-

tiate the state’s theory that * * * [defendant] actively partic-

ipated in the victim’s murder.” Id. Even if that were true,

given the other evidence presented at trial, it is apparent

that defendant’s statements provided little additional proba-

tive evidence of his guilt.

Miranda warnings were first developed to protect

against coerced confessions of guilt, truthful or not. Of

course, defendant’s statements here are not those kinds of

statements: nothing defendant said could remotely be con-

sidered a true (or false) confession. Nor are they the kind of

partially inculpatory statements that might give police leads

to seek other evidence of defendant’s guilt. And, because

defendant did not testify, they were not used for impeach-

ment purposes.

Yes, defendant’s statements were easily disproved.

But the overwhelming evidence that disproved them would

Cite as 367 Or 188 (2020) 215

have been front and center in the trial in any event, as it will

be in any re-trial. That evidence demonstrates there is lit-

tle likelihood that the statements affected the jury’s verdict.

On the night of the murder, several of Cain’s friends partied

at the victim’s home, along with Cain and defendant, and

they saw defendant wearing a pair of football gloves that

belonged to Cain. One of those gloves was later found in the

getaway car near where defendant was sitting in the pas-

senger seat. The glove had the victim’s blood on it and her

Rolex watch inside. Defendant’s shirt, pants, and shoes all

had the victim’s blood on them. There was no blood on Cain’s

shoes. (Cain’s clothes had been inadvertently washed when

he was first incarcerated after being arrested.) A button was

missing from one of defendant’s shirts, and it was found in

the victim’s room. Another person at the victim’s home fell

asleep after the party, but awoke to hear the victim scream-

ing. He testified that the victim said, “Stop, stop.”; “No more,

no more”; and “I’ll give you $1,000.” He also said that he

heard defendant ask, “Where’s the money?” in a loud voice,

and that he heard Cain say, “Just do it[.]” And he heard

“rumbling” that sounded like “someone * * * being attacked.”

In the face of that testimonial and physical evi-

dence, defendant’s statements would not have affected the

jury’s verdict. Defendant’s theory at trial was that, although

defendant also had been in the victim’s bedroom, Cain had

killed the victim. Defendant argued that his intellectual

disability helped explain why he did not leave while the

attack was taking place (as did Cain’s other friend who was

in the house), try to stop Cain, or seek help for the victim.

Defendant also sought to show that he was manipulated

by Cain to come to Portland as part of Cain’s plan to rob,

and perhaps harm, the victim, manipulation made easier

by defendant’s intellectual disability. Although the major-

ity emphasizes that defendant’s easily proven lies “tended to

indicate defendant’s consciousness of guilt,” 367 Or at 209,

that much would have been obvious to the jury from defen-

dant’s acknowledgment that he had been in the victim’s

room, the testimonial and physical evidence of his involve-

ment in the victim’s death, and the evidence that defendant

had attempted to flee when police stopped the car in eastern

Oregon. As a result, to the extent that defendant’s denials

216 State v. Ward

of involvement were easily disproved and therefore might

have been evidence of his “consciousness of guilt,” those

statements were of little additional probative value, given

the other evidence at trial.

There was little likelihood that the error here, if

error it was, affected the jury’s verdict. And, of course, all

the evidence set out above will almost certainly be intro-

duced at the re-trial, and the result will almost certainly be

the same.

I respectfully dissent.