State v. McAnulty

432 October 30, 2014 No. 68

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON

Respondent,

v.

ANGELA DARLENE McANULTY,

Appellant.

(CC 200927457; SC S059476)

En Banc

On automatic and direct review of the judgment of con-

viction and sentence of death imposed by the Lane County

Circuit Court.

Kip W. Leonard, Judge.

Argued and submitted March 20, 2014.

Daniel J. Casey, Portland, argued the case and filed the

briefs for appellant.

Timothy A. Sylwester, Assistant Attorney General, filed

the brief and argued the cause for respondent. With him on

the brief were Ellen F. Rosenblum, Attorney General, Anna

M. Joyce, Solicitor General, and Jamie Contreras, Assistant

Attorney General.

BALDWIN, J.

The judgment of conviction and sentence of death are

affirmed.

On automatic and direct review of the judgment of conviction and sentence

of death, defendant raised 18 assignments of error. Among other assignments,

defendant asserted that the trial court erred in denying her motion to suppress

statements that she had made to detectives when interrogated. She argued that

the statements had been obtained in violation of her right to remain silent under

Article I, section 12, of the Oregon Constitution and the Fifth Amendment to the

United States Constitution. The state, however, asserted that defendant’s chal-

lenge was not reviewable under ORS 138.050(3), because defendant had failed

to enter a conditional guilty plea pursuant to ORS 135.335(3). Defendant also

assigned error to the trial court’s exclusion for cause of four prospective jurors,

denial of her motion for judgment of acquittal, refusal to give her requested jury

instruction regarding mercy, and denial of her motion and alternative demur-

rer challenging the indictment. Held: Defendant’s challenge to the denial of her

Cite as 356 Or 432 (2014) 433

pretrial motion to suppress is reviewable under ORS 138.012(1); however, defen-

dant’s failure to comply with ORS 135.335(3) precludes a withdrawal of her plea.

Any error in the trial court’s denial of defendant’s motion to suppress was harm-

less. The trial court did not err in excluding prospective jurors for cause, denying

defendant’s motion for judgment of acquittal, rejecting her proposed jury instruc-

tion, or denying her challenge to the indictment.

The judgment of conviction and sentence of death are affirmed.

434 State v. McAnulty

BALDWIN, J.

This case is before us on automatic and direct review

of defendant’s judgment of conviction by guilty plea and sen-

tence of death, following a penalty-phase trial before a jury,

for one count of aggravated murder. See ORS 163.095; ORS

138.012(1); ORAP 12.10. For the reasons stated below, we

affirm defendant’s judgment of conviction and sentence.

I. BACKGROUND

We begin with an overview of the facts admitted

into evidence during defendant’s penalty-phase trial. See

State v. Acremant, 338 Or 302, 305, 108 P3d 1139, cert den,

546 US 864 (2005) (reciting facts from penalty-phase evi-

dence where defendant pleaded guilty to aggravated mur-

der); ORS 163.150(1)(a) (regarding procedures for penalty-

phase proceedings).

In 1994, defendant gave birth to her daughter,

Jeanette, in California. Approximately one year later, defen-

dant lost custody of Jeanette due to drug use, neglect, and

physical abuse. Several years later, defendant gave birth to

another daughter, P, and regained custody of Jeanette.

Defendant then met and married Richard, giving

birth to their son, R, shortly thereafter. Richard became

Jeanette’s stepfather. In early 2006, the family moved to a

house on Robin Avenue in Eugene, Oregon, and Jeanette

enrolled in middle school. Jeanette’s classmates and teach-

ers soon noticed that Jeanette appeared skinny and was

always hungry. While at school, Jeanette’s friends shared

food with her, and she obtained food from lunch aides.

Around that time, Jeanette wrote a letter to a school

official explaining that she was denied food at home, forced

to eat chili peppers, and forced to sit on her knees for long

periods of time for punishment. School officials alerted the

Department of Human Services (DHS), which opened an

investigation into the allegations. A DHS caseworker inter-

viewed and conducted a home visit at that time; however,

after gathering conflicting statements from family members

and observing the family home stocked with food, DHS ulti-

mately closed the file as “unable to determine.” After school

Cite as 356 Or 432 (2014) 435

officials and a parent of one of Jeanette’s friends made

additional reports to DHS about suspected abuse, defen-

dant removed Jeanette from school and homeschooled her.

Defendant did not homeschool her other two children.

In the home, defendant treated Jeanette differ-

ently from her other children. Jeanette was not allowed to

speak with her siblings. Defendant put locks on the kitchen

cupboards and controlled Jeanette’s eating. She provided

Jeanette with less food than she gave to the rest of the fam-

ily and sometimes forced Jeanette to forgo meals. Defendant

also controlled what Jeanette drank. Defendant removed

hose spigots, turned off the water supply under the sinks,

and installed locks on the bathroom. She forced Jeanette

to obtain permission before drinking or using the restroom,

and sometimes denied Jeanette water or use of the bathroom.

Defendant also subjected Jeanette to physical pun-

ishment for purported disobedience, but did not similarly

target P or R. Defendant would force Jeanette to eat hot pep-

pers, or stand or kneel in a corner for long periods of time,

sometimes while holding heavy objects. Defendant punched,

slapped, scratched, and kicked Jeanette all over her body,

causing bruising and cuts and sometimes knocking out her

teeth. Defendant also would repeatedly whip Jeanette’s bare

back, bottom, and legs with belts and sticks, causing lacer-

ations that would bleed. Defendant often isolated Jeanette

in a single bedroom to commit the violent acts, and turned

on the vacuum or turned up the volume on the television

to prevent others from overhearing. After the most violent

attacks, defendant put iodine on Jeanette’s wounds and

attempted to bandage the injuries herself, declining to seek

professional medical or dental care for Jeanette. Richard did

not intervene or pursue treatment for Jeanette’s injuries.

During the summer of 2009, after Richard suffered

a heart attack, the family moved from their house on Robin

Avenue to a home on Howard Avenue. Defendant’s abuse,

torture, and starvation of Jeanette intensified at that res-

idence. Jeanette lost weight and sustained serious physical

injuries, some of which became infected. In early December,

Jeanette suffered a significant blow to her head, after

which she appeared confused and had difficulty walking

436 State v. McAnulty

or standing. On December 9, 2009, Jeanette fell asleep on

the floor and became unresponsive. Defendant and Richard

placed Jeanette in the bathtub and called Richard’s mother,

who told them to call 9-1-1. Richard then called 9-1-1.

Emergency responders arrived and rushed Jeanette to the

hospital, where she was pronounced dead. Given the sever-

ity of Jeanette’s prolonged starvation, dehydration, physical

injuries and localized infections, authorities were unable to

pinpoint a single cause of death. The cause of death instead

was listed as “multifactoral abuse and neglect.”

Defendant and Richard accompanied investigators

to the sheriff’s office for questioning. Before leaving the hos-

pital, defendant and Richard privately discussed assigning

blame to Richard and the possibility that authorities might

impose a lighter sentence on him as a result of his heart con-

dition. At the sheriff’s office, detectives separated the cou-

ple, read them their Miranda rights, and interviewed them.

Richard initially told authorities that he had “spanked”

Jeanette, but later admitted that he had not been truth-

ful and had agreed to take the blame. Defendant also ini-

tially assigned blame to Richard, but then later made self-

incriminating statements.

Detectives executed search warrants for both the

Howard Avenue and Robin Avenue homes, where police

discovered blood and other DNA evidence and observed an

apparent attempt to sanitize some of that evidence. Also

recovered from a garbage bin at the Howard Avenue home

were several blood-stained items, including sticks, belts,

clothing, bedding, and a piece of cardboard on which defen-

dant forced Jeanette to sleep.

The state charged defendant by indictment with

one count of aggravated murder, ORS 163.095, and one

count of tampering with physical evidence, ORS 162.295.

Before trial, defendant moved to suppress the statements

that she had made to detectives. The trial court denied the

motion. On the first day of trial, defendant pleaded guilty to

the offenses charged. The case proceeded to a penalty-phase

trial before a jury to determine defendant’s sentence on the

aggravated murder conviction. At the conclusion of trial, the

Cite as 356 Or 432 (2014) 437

jury unanimously returned affirmative findings to each of

the following questions under ORS 163.150(1)(b):

“(A)  Whether the conduct of the defendant that caused

the death of the deceased was committed deliberately and

with the reasonable expectation that death of the deceased

or another would result;

“(B)  Whether there is a probability that the defendant

would commit criminal acts of violence that would consti-

tute a continuing threat to society;

“(C)  If raised by the evidence, whether the conduct of

the defendant in killing the deceased was unreasonable in

response to the provocation, if any, by the deceased; and

“(D)  Whether the defendant should receive a death

sentence.”

The trial court sentenced defendant accordingly, and this

court’s automatic and direct review of defendant’s conviction

and sentence followed.

II. ANALYSIS

On review, defendant raises 18 assignments of error.

We have reviewed all assignments of error, and we conclude

that defendant’s first assignment of error relating to the

trial court’s ruling on her motion to suppress is well taken.

However, we further conclude that the error was harmless.

We begin with that assignment of error, followed by defen-

dant’s remaining assignments that merit discussion.1

A.  Denial of Pretrial Motion to Suppress

Before trial, defendant moved to suppress state-

ments that she had made to detectives in four interrogations

that occurred during the day following Jeanette’s death.

Defendant argued that the statements had been obtained in

violation of her right to remain silent under Article I, section

12, of the Oregon Constitution2 and the Fifth Amendment to

1

We address in detail four assignments of error and one aspect of a fifth

assignment of error. We reject without discussion the remaining issues that

defendant raises, because those issues are either unpreserved, have already been

decided adversely to defendant’s position, or otherwise lack merit.

2

Article I, section 12, of the Oregon Constitution provides, in part, “No per-

son shall * * * be compelled in any criminal prosecution to testify against himself.”

438 State v. McAnulty

the United States Constitution.3 The trial court denied the

motion, and defendant entered an unconditional guilty plea

to the charges against her. Defendant’s case then proceeded

to the penalty phase, and defendant’s statements to detec-

tives were admitted without objection.

Defendant first assigns error to the trial court’s

denial of her motion to suppress. As a threshold matter,

however, the state argues that this court cannot review

defendant’s challenge. The state notes that defendant failed,

when entering her guilty plea, to make it conditional by

reserving “in writing, the right, on appeal from the judg-

ment, to a review of an adverse determination of any speci-

fied pretrial motion.” ORS 135.335(3). As a result, the state

contends that defendant’s claim that the trial court erred

by denying her pretrial motion to suppress is not reviewable

under ORS 138.050(3) (limiting issues reviewable on appeal

from sentence on plea of guilty or no contest).

Whether this court, on automatic and direct review

of a sentence of death, may review a defendant’s challenge to a

pretrial ruling when the defendant has failed to comply with

ORS 135.335(3) is an issue of first impression.4 We examine

that issue first, because its resolution controls whether this

court may review defendant’s first assignment of error.

1.  Threshold issue of reviewability

It is a “well-settled principle that ‘[a] party does not

have an inherent right to appellate court review;’ ” rather,

the party must show that the matter from which appeal is

taken is appealable under a provision of law. State v. Cloutier,

351 Or 68, 74, 261 P3d 1234 (2011) (alteration in original;

quoting Waybrant v. Bernstein, 294 Or 650, 653, 661 P2d

931 (1983)). ORS 138.012(1) provides this court with origi-

nal jurisdiction in death penalty cases:

3

The Fifth Amendment to the United States Constitution provides, in part,

“No person * * * shall be compelled in any criminal case to be a witness against

himself[.]”

4

This court has previously reviewed a pretrial ruling in a capital case where

the defendant had entered an unconditional guilty plea and trial had been lim-

ited to the penalty phase. See Acremant, 338 Or at 317. However, the parties in

that case did not advance the reviewability argument that the state now raises,

and, consequently, the court did not address the issue.

Cite as 356 Or 432 (2014) 439

“The judgment of conviction and sentence of death

entered under ORS 163.150(1)(f)[5] is subject to automatic

and direct review by the Supreme Court.”

See also ORAP 12.10 (specifying rules for automatic review

of death sentence cases).

The state does not dispute that ORS 138.012 pro-

vides this court with original jurisdiction over this appeal.

Rather, the state contends that other statutory provisions

apply to limit this court’s scope of review. Specifically, the

state construes the text of ORS 138.012 as providing only

a jurisdictional grant that does not control the permissible

range of appellate review. The state points to ORS 138.050

and ORS 138.222, which include provisions that limit appel-

late review in criminal cases where a defendant has pleaded

guilty or no contest without qualification and without invok-

ing ORS 135.335(3). Because defendant entered an uncondi-

tional guilty plea and did not comply with the requirements

of ORS 135.335(3), the state contends that those limitations

apply.

The state relies on the following text in ORS

138.050:

“(1)  Except as otherwise provided in ORS 135.335, a

defendant who has pleaded guilty or no contest may take an

appeal from a judgment or order described in ORS 138.053

only when the defendant makes a colorable showing that

the disposition:

“(a)  Exceeds the maximum allowable by law; or

“(b)  Is unconstitutionally cruel and unusual.

“* * * * *

“(3)  On appeal under subsection (1) of this section, the

appellate court shall consider only whether the disposition:

“(a)  Exceeds the maximum allowable by law; or

“(b)  Is unconstitutionally cruel and unusual.”

5

ORS 163.150(1)(f) requires that, if a jury returns affirmative findings on

each of the four questions required to impose the death penalty, the trial court

must sentence the defendant to death. See also ORS 163.150(1)(b) (setting out

four questions for the jury).

440 State v. McAnulty

As applied to this case, the state reads ORS 138.050(3) as

limiting appellate review to consideration of only the judg-

ment or order described in ORS 138.053,6 except as other-

wise provided in ORS 135.335. The state argues that a

judgment or order under ORS 138.053 does not include a

disposition on a pretrial ruling and that the exception for

ORS 135.335 that would permit a broader scope of review

does not apply here because defendant failed to enter a con-

ditional plea. See ORS 135.335(3).

The state also relies on the following text of ORS

138.222:

“(1)  Notwithstanding the provisions of ORS 138.040

and 138.050, a sentence imposed for a judgment of convic-

tion entered for a felony committed on or after November 1,

1989, may be reviewed only as provided by this section.

“* * * * *

“(4)  In any appeal, the appellate court may review a

claim that:

“(a)  The sentencing court failed to comply with require-

ments of law in imposing or failing to impose a sentence;

“* * * * *

“(7)  Either the state or the defendant may appeal a

judgment of conviction based on the sentence for a felony

committed on or after November 1, 1989, to the Court of

Appeals subject to the limitations of chapter 790, Oregon

Laws 1989. The defendant may appeal under this subsec-

tion only upon showing a colorable claim of error in a pro-

ceeding if the appeal is from a proceeding in which:

“(a)  A sentence was entered subsequent to a plea of

guilty or no contest * * *.”

In the state’s view, because defendant’s sentence was entered

subsequently to her guilty plea, ORS 138.222(4)(a) limits

review to consideration of either the lawfulness of a sentence

6

ORS 138.053 designates five dispositions as subject to the appeal provi-

sions and limitations on review under ORS 138.050. The first two dispositions

relate to sentencing, specifically the “[i]mposition of a sentence on conviction,”

ORS 138.053(1)(a), and the “[s]uspension of imposition or execution of any part

of a sentence,” ORS 138.053(1)(b); the other three relate to probation. See ORS

138.053(1)(c) - (e).

Cite as 356 Or 432 (2014) 441

or whether an error occurred in imposing the sentence. The

state contends that those limitations preclude review of the

pretrial ruling on defendant’s motion to suppress.

The state’s position on review consists of two overlap-

ping propositions. First, because nothing in ORS 138.012(1)

purports to prescribe any scope of review, that statute does

not supersede or exempt this court in reviewing a death pen-

alty case from the scope of review limitations imposed by

ORS 138.050(3) and ORS 138.222(4)(a). Second, the limited

review in this case is a direct consequence of defendant’s

failure to comply with the conditional plea process outlined

in ORS 135.335(3).

a.  Scope of review

We first address the scope of review issue before

examining the effect of the conditional plea statute in more

detail. The state is correct that ORS 138.050 and ORS

138.222 impose significant limitations on the scope of review

in criminal cases that fall within their purview. However,

the state’s reading of those provisions overlooks significant

textual and contextual clues that demonstrate that the leg-

islature intended the appeals undertaken in ORS 138.050

and ORS 138.222 to be distinct from the automatic and

direct review process that occurs in death penalty cases. As

a result, as explained below, we conclude that the legisla-

ture did not intend the scope of review limitations provided

under ORS 138.050 and ORS 138.222 to apply to limit a

direct death penalty review in this court. We arrive at that

conclusion by examining the text and context of the various

statutes. See State v. Gaines, 346 Or 160, 171-73, 206 P3d

1042 (2009) (describing methodology). We also consider this

court’s prior construction of the statutes at issue. Blacknall

v. Board of Parole, 348 Or 131, 141-42, 229 P3d 595 (2010).

To begin, the text of ORS 138.012(1) contrasts sig-

nificantly with the text of ORS 138.050 and ORS 138.222.

As noted, ORS 138.012(1) provides for “automatic and direct

review by the Supreme Court” in all cases in which a jury

convicts a defendant of aggravated murder and answers

the relevant death penalty questions outlined under ORS

163.150(1)(b) in the affirmative. Under that statute, an

appeal to this court occurs as a matter of course after the

442 State v. McAnulty

imposition of a death sentence, bypassing any intermedi-

ate review that the Court of Appeals would typically con-

duct. This court has reviewed death sentences in a manner

consistent with that textual interpretation. See, e.g., State

v. Montez, 309 Or 564, 789 P2d 1352 (1990) (engaging in

automatic and direct review; noting that review considered

mandatory). See also ORAP 12.10(1) (“Whenever a defen-

dant is sentenced to death, the judgment of conviction and

sentence of death are subject to automatic and direct review

by the Supreme Court without the defendant filing a notice

of appeal.”).

In contrast to the automatic and direct review pro-

vided under ORS 138.012(1), ORS 138.050 expressly refers

to an appeal process that is not mandatory and is not initi-

ated in this court. In Cloutier, 351 Or 68, this court under-

took an extensive examination of the meaning and history

of ORS 138.050. The court explained that ORS 138.050 must

be read with ORS 138.040 and that, taken together, those

provisions authorize appeal and review of sentences for

criminal offenses. Cloutier, 351 Or at 91. Of particular sig-

nificance to this case, as the text of those provisions makes

clear, an appeal in such criminal cases is at a defendant’s

option and goes before the Court of Appeals; there is no right

of appeal to or review by this court. ORS 138.040(1) provides

a wide scope of review on appeal, but ORS 138.040 does not

encompass the process for appeal from a sentence on a plea

of guilty or no contest as provided for under ORS 138.050.

Similarly, ORS 138.050 states that “a defendant

who has pleaded guilty or no contest may take an appeal

from a judgment or order” if the defendant makes a colorable

showing that the disposition meets either of the two condi-

tions described therein. ORS 138.050(1) (emphasis added).

Depending on the court in which the judgment or order

originates, ORS 138.050 provides that the appeal be taken

either “to the Court of Appeals” or “to the circuit court for

the county.” ORS 138.050(2). Thus, the text of ORS 138.050

shows that, for appeals from criminal convictions and sen-

tences, the legislature envisioned a voluntary process that

provides for intermediate review in the Court of Appeals.

That procedure is distinct from the automatic and direct

review provided under ORS 138.012.

Cite as 356 Or 432 (2014) 443

ORS 138.222 authorizes an appeal in the Court

of Appeals at defendant’s option. In 1989, the legislature

adopted ORS 138.222 as part of a package of new sentenc-

ing guidelines legislation. That statute expressly authorizes

appeal of convictions from pleas of guilty or no contest, and

states that “[e]ither the state or the defendant may appeal”

from a judgment of conviction and sentence in such cases.

ORS 138.222(7) (emphasis added). Under the terms of the

statute, such an appeal is made “to the Court of Appeals.”

Id. Thus, as with ORS 138.050, ORS 138.222 contemplates

a criminal appeal that is initiated by the defendant filing a

notice of appeal in the Court of Appeals.

The text of ORS 138.222 provides that, “[n]otwith-

standing the provisions of ORS 138.040 and 138.050, a

sentence imposed for a judgment of conviction entered for

a felony committed on or after November 1, 1989, may be

reviewed only as provided by this section.” ORS 138.222(1)

(emphasis added); see also Cloutier, 351 Or at 91 (noting

that ORS 138.222 governs appeal and review of sentences

imposed for felonies). ORS 138.222 then sets forth various

limitations on the permissible scope of review on appeal,

including provisions that apply to sentences of probation,

sentences of imprisonment, and sentences that depart from

the presumptive sentencing range. ORS 138.222 makes no

reference to a sentence of death.

Significant distinctions also exist between the

remand provisions of ORS 138.222 and ORS 138.012. For

example, ORS 138.012 permits review of both the guilt and

penalty phases of a death penalty case. If this court deter-

mines that prejudicial error occurred in the penalty phase,

ORS 138.012(2)(a) provides that a sentence of death may be

set aside. It specifies the procedure to occur on remand, which,

depending on the course that the state elects, requires the

trial court either to sentence a defendant to imprisonment

for life pursuant to ORS 163.105(1)(c) or to empanel a jury

to determine whether a defendant should again be sentenced

to death pursuant to ORS 163.150(1)(f). ORS 138.222 makes

no reference to such a process in its remand provisions. See

ORS 138.222(5)(a). Those inconsistencies suggest an inten-

tion that the two statutes will apply in different settings.

444 State v. McAnulty

This court’s case law also suggests that the auto-

matic and direct review provided under ORS 138.012(1) is

unique. The court has recognized that a death sentence is

different both in the legislative enactments that control how

it is enforced and in the overall significance of the penalty.

In State v. Haugen, 349 Or 174, 243 P3d 31 (2010), this court

declined to apply ORS 137.123—which governs consecutive

sentences—to a sentence of death, because it determined

that that statute was inconsistent with the more specific

statutes permitting a death sentence for aggravated mur-

der. The court explained that

“[t]he statutes providing for the imposition of a sentence

of death are a more specific expression of legislative intent

when compared with a sentence of incarceration, because

a sentence of death is exceptional. For that reason, * * *

the legislature has enacted a number of specific statutes

to regulate the manner in which a death sentence moves

toward the issuance of a death warrant and the date of

execution.”

Id. at 203-04; see also State v. Guzek, 322 Or 245, 264, 906

P2d 272 (1995) (Guzek II) (“Capital cases require our most

vigilant and deliberative review. We agree * * * that ‘[d]eath

is a punishment different from all other sanctions in kind

rather than degree’ so that ‘there is a difference in the need

for reliability in the determination that death is the appro-

priate punishment in a specific case.’ ” (quoting Woodson v.

North Carolina, 428 US 280, 303-05, 96 S Ct 2978, 49 L Ed

2d 944 (1976)).

In sum, we conclude that the legislature did not

intend the scope of review limitations contained in ORS

138.050 and ORS 138.222 to apply to this court’s auto-

matic and direct review of a conviction and sentence of

death under ORS 138.012(1). Further, nothing in ORS

138.012(1) purports to limit this court’s ability to review

defendant’s assignment of error. Consequently, we may

review defendant’s challenge under ORS 138.012(1). That

conclusion, however, does not directly answer what effects,

if any, flow from defendant’s failure to enter a conditional

plea pursuant to ORS 135.335(3). We therefore turn to

that issue.

Cite as 356 Or 432 (2014) 445

b.  Effect of unconditional plea

ORS 135.335 was originally enacted in 1973 to per-

mit pleas of guilty, not guilty, and no contest. See Or Laws

1973, ch 836, § 159. The statute was amended in 1999 to add

a further provision permitting a defendant to enter a condi-

tional guilty plea. See Or Laws 1999, ch 134, § 1. The statute

now provides, in part:

“With the consent of the court and the state, a defen-

dant may enter a conditional plea of guilty or no contest

reserving, in writing, the right, on appeal from the judg-

ment, to a review of an adverse determination of any spec-

ified pretrial motion. A defendant who finally prevails on

appeal may withdraw the plea.”

ORS 135.335(3).

The 1999 enactment of subsection (3) of ORS 135.335

has two primary effects. First, for criminal defendants who

plead guilty or no contest, it gives them a statutorily recog-

nized path to obtain appellate review of a pretrial ruling.

See Or Laws 1999, ch 134, § 1. Previously, a defendant who

had pleaded guilty or no contest to a criminal charge had

no procedural way to challenge a trial court’s ruling on a

pretrial motion. As this court observed in State v. Dinsmore,

342 Or 1, 6-7, 147 P3d 1146 (2006), before 1999, a defen-

dant who, for example, was unsuccessful in pretrial efforts

to suppress evidence was typically required to enter a plea

of not guilty and proceed to trial—often a trial on stipulated

facts—to preserve the ability to contest the adverse pretrial

ruling on that motion.

Second, the enactment of ORS 135.335(3) provides

a statutory mechanism for a criminal defendant to later

withdraw a guilty plea if that defendant prevails in chal-

lenging the pretrial ruling reserved for review. As the last

sentence of that subsection states, a defendant who is suc-

cessful on appeal may withdraw his or her plea and enter

a new plea of guilty, not guilty, or no contest. If a defen-

dant withdraws the plea and enters a plea of not guilty, then

that defendant may proceed to trial with the benefit of a

successful challenge to an earlier pretrial ruling. See also

Dinsmore, 342 Or at 7 (“[W]hen a conditional plea is entered

446 State v. McAnulty

as an expediency under ORS 135.335(3), the parties begin

anew on the charges subject to the plea if the defendant’s

appeal is successful and the defendant opts to withdraw the

conditional plea.”).

But, by providing a mechanism to obtain review on

a pretrial ruling and later withdraw a guilty or no contest

plea, the text of ORS 135.335(3) carries with it an implicit

limitation. Specifically, if a criminal defendant does not

enter a conditional plea, the provisions of subsection (3) do

not apply. Thus, a defendant does not have the benefit of

a statutorily recognized path for appellate review. Even if

a separate provision of law nonetheless permits appellate

review, the defendant would have no statutorily recognized

right to later withdraw her guilty or no contest plea on the

basis that a particular pretrial ruling constituted revers-

ible error. Thus, the plea would remain intact, effectuate

a waiver of the right to trial, and result in a conviction of

the offense for which the plea was entered. See also ORS

135.345 (regarding effect of no contest plea).

Here, in entering her guilty plea, defendant did not

attempt to reserve in writing her ability to challenge the

trial court’s adverse determination on any specified pretrial

ruling. Although this court may review defendant’s assign-

ment of error pursuant to ORS 138.012(1), defendant’s fail-

ure to comply with ORS 135.335(3) precludes a withdrawal

of her plea. Defendant’s conviction therefore remains intact,

effectuates a waiver of the right to trial, and results in a

conviction on the charged offenses.

The state, however, advances a further effect of

ORS 135.335(3) in relation to defendant’s claim of error.

In the state’s view, defendant’s unconditional guilty plea

amounted to a complete waiver of any claims relating to the

adverse pretrial rulings. Because defendant did not renew

her objection to the admission of the evidence during the

penalty trial, the state maintains that defendant cannot

now challenge the admission of those statements during

the penalty phase. We disagree. Although the functional

effect of defendant’s unconditional plea precludes her from

obtaining a reversal of her conviction through a challenge

to the trial court’s pretrial ruling on her motion to suppress,

Cite as 356 Or 432 (2014) 447

we find nothing in the text or context of ORS 135.335(3)

that prevents her from challenging, on automatic and direct

review, the ruling as it relates to the imposition of her death

sentence.7 Moreover, ORS 163.150(1)(a) prohibits the admis-

sion, during penalty proceedings, of “any evidence secured

in violation of the Constitution of the United States or of

the State of Oregon.” In other words, the merits of the argu-

ments made in defendant’s pretrial motion also apply to the

penalty-phase proceedings.

As the state points out, during the penalty phase,

defendant did not object to the admission of defendant’s state-

ments that were the subject of defendant’s pretrial motion to

suppress. On review, however, we find applicable the rule

of preservation that permits a reviewing court to consider

issues previously litigated and decided notwithstanding a

lack of relitigation at trial. See State v. Foster, 296 Or 174,

183-84, 674 P2d 587 (1983) (concluding that pretrial motion

preserved issue notwithstanding lack of relitigation at trial

because a sufficient offer of proof was made “to permit the

court to rule intelligently” and “the judge gave a final rul-

ing”); see also State v. Pitt, 352 Or 566, 574-75, 293 P3d 1002

(2012) (same); Acremant, 338 Or 302 (death penalty case

where defendant pleaded guilty and the court considered

the defendant’s challenge to an adverse pretrial ruling when

defendant had made no objection at the penalty trial and

scope of review was not contested).

Defendant argued in her pretrial motion to suppress

that her statements were inadmissible because they were

obtained in violation of her constitutional rights. The trial

court held a hearing on the issue, considered the evidence,

and made findings of fact and conclusions of law. Thus,

7

Aggravated murder trials are typically divided into two proceedings: the

guilt phase and the penalty phase. State v. Pratt, 309 Or 205, 210, 785 P2d 350

(1990). In most cases, guilt and penalty proceedings “are merely separate phases

of the same trial in which the same jury decides, first, whether the defendant

is guilty and, second—if the defendant is guilty—whether the defendant should

receive the death penalty.” State ex rel Carlile v. Frost, 326 Or 607, 613, 956 P2d

202 (1998) (citing State v. Montez, 324 Or 343, 348-49, 927 P2d 64 (1996), cert

den, 520 US 1233 (1997)). If a defendant pleads guilty, a jury is impaneled and

sworn for only a penalty-phase proceeding. ORS 163.150(1)(a) (“If the defendant

has pleaded guilty, the sentencing proceeding shall be conducted before a jury

impaneled for that purpose.”); see also ORS 138.012(2) (regarding procedure for

penalty phase when on remand for resentencing).

448 State v. McAnulty

defendant alerted the trial court to the purported error, and

the court considered the merits of defendant’s motion and

ruled on it. After defendant entered her plea, the trial court

empanelled a jury for a penalty-phase trial. At the time the

evidence was admitted during the penalty phase, the trial

court was on notice of defendant’s position regarding that

evidence. See Foster, 296 Or at 183-84; Pitt, 352 Or at 574.

See also ORS 163.150(1)(a) (prohibiting the admission of

“any evidence secured in violation of the Constitution of the

United States or of the State of Oregon”).

We therefore conclude that we may consider defen-

dant’s first assignment of error on automatic and direct

review under ORS 138.012(1).8 However, as a result of

defendant’s unconditional plea, she cannot now withdraw

her plea, and her conviction remains intact. Accordingly,

we examine her challenge to the trial court’s ruling on her

pretrial motion to suppress only as it relates to the penalty

phase of her trial. We now turn to the merits of defendant’s

suppression argument.

2.  Right against self-incrimination

Article I, section 12, of the Oregon Constitution and

the Fifth Amendment to the United Stated Constitution

both protect against compelled self-incrimination. Pursuant

to those provisions, a criminal defendant’s admissions will

ordinarily be suppressed if they are obtained in violation

8

The approach that we take in this case does not necessarily extend to other

types of cases or other types of evidence that may be admitted during penalty-

phase proceedings. As this court has explained:

“[E]ven if a trial judge has denied a pretrial motion to exclude evidence,

the moving party (and other parties) are well advised to consider making

the same or other objections, if warranted, when a party offers the evidence

during trial. An objection during trial allows a judge to reevaluate the issue

of admissibility in light of what has occurred at trial, including whether the

anticipated evidence or the parties’ arguments have changed since the court

denied the motion in limine. An objection at trial to the admission of certain

evidence also may help refine the evidentiary issues for appellate review.”

Pitt, 352 Or at 574. It bears mentioning that relitigation may, in some instances,

be required to preserve a claim of error in penalty proceedings, particularly in

cases where the evidence relates to a purpose not previously relevant or consid-

ered. See ORS 163.150(1)(a) (permitting admission in penalty phase of evidence

“as to any matter that the court deems relevant to sentence,” which includes vic-

tim impact evidence or proof of aggravating or mitigating circumstances). Such

an instance is not present here.

Cite as 356 Or 432 (2014) 449

of the right to remain silent or are the product of coercion.

See, e.g., State v. Vondehn, 348 Or 462, 474-75, 236 P3d 691

(2010); Mincey v. Arizona, 437 US 385, 397-98, 98 S Ct 2408,

57 L Ed 2d 290 (1978). Defendant contends that the trial

court should have suppressed statements that she made

to detectives in four interrogations following Jeanette’s

death.9 Defendant points to three invocations of her right

to remain silent that occurred during the first interroga-

tion. She argues that detectives persisted in questioning

her after each of those invocations and that, as a result, the

statements that followed were obtained in violation of her

rights. She further contends that those violations created

a coercive environment that carried forward through the

subsequent interrogations and created the impression that

the continued assertion of her rights would be meaningless.

As a result, defendant submits that all statements that fol-

lowed her invocations—even those occurring in subsequent

interrogations—must be suppressed.

We review defendant’s challenge for errors of law.

See State v. James, 339 Or 476, 481, 123 P3d 251 (2005).

In doing so, we are “bound by the trial court’s findings of

historical fact if evidence in the record supports them.” Id.

(citing Ball v. Gladden, 250 Or 485, 487-88, 443 P2d 621

(1968)). As we will explain, we conclude that defendant’s

right to remain silent was violated when detectives contin-

ued questioning her after her second and third invocations

that occurred during her first interrogation. We further con-

clude, however, that her statements in subsequent interro-

gations were voluntary and that any error in admitting the

statements from the first interrogation was harmless.

a.  First interrogation

On December 9, after Jeanette was pronounced

dead, defendant voluntarily accompanied investigators to the

sheriff’s station from the hospital. Defendant rode uncuffed

in the front seat of an unmarked patrol car, and Richard

followed in a separate patrol car. At the station, defendant

remained in a room for approximately one hour while detec-

tives interviewed Richard in another room. A detective was

9

During the pretrial hearing on defendant’s motion to suppress, the parties

agreed that four separate interviews occurred. We follow that framework.

450 State v. McAnulty

either in the room with defendant or was standing outside

the room during that time.

At about 1:00 a.m. on December 10, Detectives

Fenley and Hoberg moved defendant to an interview room

and began her first interrogation. The detectives read defen-

dant her Miranda rights. Defendant said that she under-

stood her rights and signed a form to that effect. Defendant

was not handcuffed or placed under arrest, and the detec-

tives told her that the interview was optional and would be

recorded.

The first interrogation lasted approximately one

hour and 45 minutes. Fenley and Hoberg took turns ask-

ing questions. Defendant initially told detectives that only

Richard had “spanked” Jeanette and had put her on time-

outs. She blamed many of Jeanette’s injuries on Jeanette’s

own clumsiness and her “picking” at her scabs. Defendant

provided various explanations for Jeanette’s low weight, but

generally maintained that Jeanette ate “a lot.” Defendant

also explained that she had turned the water off under the

sinks to prevent Jeanette from drinking at night. Defendant

eventually admitted to personally “spanking” Jeanette, but

claimed she had done so only three times. She also admitted

to using a belt during the “spankings” and to giving Jeanette

a “pat on the butt” with a stick. Defendant stated that some

blood evidence in the home was the result of a belt causing

Jeanette’s scabs to break open. She also admitted that she

had cleaned up some of the evidence of Jeanette’s physical

injuries.

After about an hour, defendant asked “Can I see my

husband?,” to which Fenley responded, “I can’t promise you

that.” Defendant then asked, “Can I please go out of here?,”

to which Fenley responded, “I think we’re close to being

done, then you can go out of here.” The following exchange

then occurred:

“DEFENDANT:  I want to go see my husband, please,

let me go see my husband. * * * [P]lease let me go see him,

please.

“HOBERG: Well, the reason, you know, obviously we—

“DEFENDANT:  Is it because he doesn’t want to see

me?

Cite as 356 Or 432 (2014) 451

[FIRST INVOCATION]

“HOBERG:  No, the reason that we keep you separated

is because we have to get your story and his story, if we get

them combined—

“DEFENDANT: I’m done, I don’t want to talk anymore.”

(Emphasis added).

The interrogation continued for a short period of

time with defendant making statements, asking questions,

and occasionally asking to see Richard. Detectives gener-

ally did not attempt to solicit additional information at that

time, but did ask some clarifying questions in response to

defendant’s statements and questions. Then the following

exchange occurred:

“HOBERG:  Well, if you don’t want to talk, the[n] I’m

going to (inaudible).

“DEFENDANT:  I don’t know what else to say. * * *

“HOBERG:  Well, I mean, I’m not going to ask you any

questions because you said you didn’t want to talk to me

anymore.

“DEFENDANT: No, I was just letting you know that I

did tell you everything—

“HOBERG: Yeah.

“DEFENDANT:  —and you said to be honest with you,

and I was honest with you.

“HOBERG:  Well, I had some more questions, as far as

like, I mean, you don’t have to answer these (inaudible).

“DEFENDANT:  Are these more questions on what I

did?

“HOBERG:  It’s about, like you said you went to church

and stuff, I had some questions about that, but you don’t

have to answer them, you said you didn’t want to talk any-

more, so, I don’t want to, I’m not making you talk more.

“DEFENDANT:  I know.

[SECOND INVOCATION]

“HOBERG:  Do you not want to answer those?

452 State v. McAnulty

“DEFENDANT: I don’t want to talk no more. I’m sorry.

I just—

“HOBERG: That’s fine.”

(Emphases added).

Hoberg left defendant alone in the room. After a one

minute pause, Hoberg reentered the room and asked:

“HOBERG:  Another quick thing[;] * * * [Y]ou said you

take her to * * * Winco or church or whatever. * * * [W]ho

was the last * * * person outside the home to see her?

“DEFENDANT:  At Winco?

“HOBERG:  Or anywhere * * *.

“* * * * *

“We just want to talk to somebody that’s seen her.

“DEFENDANT:  No, I don’t want to, I’m sorry.

“HOBERG:  You don’t want us to talk to anybody that’s

seen her?

“DEFENDANT:  Well, I don’t want them to think that

I didn’t, think I killed her. You know.”

The interrogation continued for some time with Hoberg ask-

ing additional questions and defendant providing responses.

Fenley then reentered the room and asked about

Jeanette’s injuries:

[THIRD INVOCATION]

“FENLEY:  * * * I know you don’t want to look at, at

“DEFENDANT:  I don’t want to, please don’t make me.

“FENLEY:  No, no, no, don’t. Let me finish please. I’m

not going to ask you to do that. But I am going to ask you

about them just real quick, ok?

“DEFENDANT: I don’t want to no more, please, I don’t

want to.”

“FENLEY:  No, there’s something I have to * * * know.

Um, when you were treating the wounds * * * you saw the

ones that went clear down to the bone, right?

Cite as 356 Or 432 (2014) 453

“DEFENDANT: Yes.

“FENLEY:  Ok, was that * * * from one of the lashings

with the belt?

“DEFENDANT:  It was from the belt, you’re right.”

(Emphases added.) The interrogation then continued with

defendant providing some limited incriminating admissions,

such as explaining that she attempted to treat Jeanette’s

injuries herself.

b.  Second interrogation

After the first interrogation concluded, Hoberg

and Fenley began to leave the room. Defendant then began

talking to them as they were leaving. Hoberg returned to

the room, and the second interrogation followed with defen-

dant and Hoberg present. In the second interrogation,

Hoberg was more confrontational in his tone. He requested

additional details about Jeanette’s injuries and further

asked defendant about her mental state during the abusive

acts. Again, defendant generally admitted only to spanking

Jeanette. The second interrogation lasted about 10 minutes.

Afterwards, detectives walked defendant back to the first

room where she waited for them. Detectives then inter-

viewed Richard for approximately one hour.

c.  Third interrogation

The third interrogation occurred sometime after

Hoberg had made the decision to arrest defendant; how-

ever, Hoberg had not informed defendant that she was

under arrest. The interrogation lasted about 20 to 30 min-

utes, with Hoberg and Lieutenant Smith present. It was

prompted by defendant’s request to speak with Hoberg and

Smith, indicating that she had something to tell them. In

her statements, defendant discussed certain aspects of her

abusive behavior. For example, defendant stated that she

had lied about striking Jeanette only three times on the but-

tocks. Defendant then admitted to whipping Jeanette over

her back and sides with belts, a sewing yardstick, and sticks

from the yard; punching and scratching Jeanette’s face; and

kicking her “over and over.” Defendant was then arrested

and transported to the county jail.

454 State v. McAnulty

d.  Fourth interrogation

The fourth interrogation occurred about six hours

after the third interrogation. It lasted about 10 to 20 min-

utes, with Hoberg and Smith present. At the beginning of

the interrogation, defendant was again read her Miranda

rights. She stated that she understood her rights and had no

questions. Like the third interrogation, defendant provided

additional incriminating statements about certain aspects

of the abuse. For example, she told detectives that she had

also whipped Jeanette’s chest, legs, feet, and hands; and she

had hit Jeanette hard with her hand, which caused Jeanette

to fall back into a door and seriously injure her head.

e.  Trial court ruling

In ruling on the admissibility of the evidence, the

trial court heard testimony from Hoberg, watched video

recordings and reviewed transcripts of the first and second

interrogations, and reviewed police reports recounting the

third and fourth interrogations. The court concluded, as

a matter of law, that defendant was adequately advised of

her Miranda rights “at all times.” It then determined that

defendant was under compelling circumstances when she

first indicated that she was “done,” because, at that point,

the tone and content of the conversation had shifted and

defendant had unsuccessfully requested to see Richard.

The trial court concluded that the conversation had turned

from “an informational conversation to one of interrogation.”

The court further determined that defendant’s statements

“to the effect that she was done” were equivocal; however,

it concluded that defendant continually reinitiated the con-

versation with detectives and made additional statements

without inducement by threats, promises, or coercion. It con-

cluded that all of defendant’s statements in the interroga-

tions were voluntary and, thus, admissible at trial.

f. Analysis

To protect the right against self-incrimination

secured by Article I, section 12, and the Fifth Amendment,

police are required to give Miranda warnings to persons in

custody or otherwise compelling circumstances. Vondehn,

348 Or at 474; State v. Roble-Baker, 340 Or 631, 638, 136

P3d 22 (2006); Miranda v. Arizona, 384 US 436, 473-74, 86

Cite as 356 Or 432 (2014) 455

S Ct 1602, 16 L Ed 2d 694 (1966).10 If a person unequivocally

invokes her right to remain silent during a custodial inter-

rogation, police must honor that request and stop question-

ing. See 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.”); Miranda, 384 US at 473-74 (“If

the individual indicates in any manner, at any time prior

to or during questioning, that he wishes to remain silent,

the interrogation must cease.”). However, a person may still

waive the right as long as that waiver is knowing, intelli-

gent, and voluntary under the totality of the circumstances.

See State v. Meade, 327 Or 335, 339-41, 963 P2d 656 (1998)

(waiver under Article I, section 12); State v. Kell, 303 Or 89,

734 P2d 334 (1987) (same); Edwards v. Arizona, 451 US 477,

482, 101 S Ct 1880, 68 L Ed 2d 378 (1981) (waiver under

Fifth Amendment).

We begin our analysis with defendant’s claim under

Article I, section 12, of the Oregon Constitution. See Sterling

v. Cupp, 290 Or 611, 614, 625 P2d 123 (1981) (so holding). As

mentioned, the trial court concluded that defendant equiv-

ocally had invoked her right to remain silent three times

during the first interrogation, but that she then continu-

ally waived that right by reinitiating the conversation with

detectives. Defendant contends that she did not reinitiate

the conversation with detectives. The state responds that

the trial court was correct that defendant reinitiated the

conversations and, alternatively, claims that defendant’s

invocations were equivocal such that the detectives were

permitted to continue the conversation to clarify whether

defendant was exercising her Miranda rights.

10

The parties do not dispute that defendant was adequately advised of her

Miranda rights or that she validly waived those rights at the commencement of

the interrogation. Nor do the parties contest that defendant was under compel-

ling circumstances at the time of the invocations highlighted above. We agree

with the trial court’s legal conclusion that defendant was properly advised of her

rights, waived those rights initially, and was under compelling circumstances

when she first indicated that she was “done.” See, e.g., Vondehn, 348 Or at 474

(regarding Miranda requirement and ability to waive right to remain silent);

Roble-Baker, 340 Or at 640-41 (citing nonexclusive list of factors establishing

when circumstances are compelling such that Miranda warnings are required).

456 State v. McAnulty

We conclude that defendant unequivocally invoked

her right to remain silent during the first interrogation. See

Meade, 327 Or at 339 (“When a suspect in police custody

makes an unequivocal request to talk to a lawyer, all police

questioning must cease.”); State v. Charboneau, 323 Or 38,

54, 913 P2d 308 (1996) (same). Defendant’s first and second

invocations unambiguously communicated that she no lon-

ger desired to talk with detectives. Defendant’s third invoca-

tion, when viewed in the context in which it was made, effec-

tively communicated her intent to stop the conversation.11

We agree with the trial court’s conclusion that

defendant then reinitiated the conversation with authorities

after her first invocation, thus waiving her right to remain

silent. See State v. Singleton, 288 Or 89, 104, 602 P2d 1059

(1979) (“[T]he question of waiver is not simply a question

of historical fact, but one which requires the application of

constitutional principles to the facts as found.”). After com-

municating to detectives that she no longer wanted to talk,

defendant continued the conversation without prompting

from the detectives. Defendant made repeated references to

her abuse of her daughter and asked the detectives about

their view of the case. Defendant thereby expressed a will-

ingness to continue a discussion about the investigation. See

Meade, 327 Or at 341 (concluding that the defendant ini-

tiated further conversation that evinced a willingness and

desire for a generalized discussion about the investigation).

Defendant was advised of her Miranda rights at

the beginning of the first interrogation, indicated that she

understood her rights, and waived them. Defendant’s first

invocation came approximately one hour later. As defen-

dant continued talking, the detectives repeatedly sought

to clarify whether defendant wanted to stop speaking with

them. See Montez, 309 Or at 572-73 (noting that officers’

“neutral questions, intended only to clarify” whether the

11

The state maintains that defendant, in her third invocation, merely

expressed a desire not to look at a photograph of Jeanette. The state is mistaken.

Before defendant’s invocation, Fenley acknowledged that he was aware that

defendant did not want to look at anything and assured defendant that he was

“not going to ask [her] to do that.” He instead told defendant that he still needed

to ask her about Jeanette’s injuries. When defendant then stated, “I don’t want to

no more, please, I don’t want to,” she was communicating that she did not want to

talk with Fenley about Jeanette’s injuries.

Cite as 356 Or 432 (2014) 457

defendant had invoked his right to counsel “did not probe

beyond [the] limited and permissible inquiry”). The detec-

tives did not ask investigative questions at that time and

offered limited responses to questions that defendant posed

to them. Thus, we conclude that defendant knowingly and

voluntarily waived her right to remain silent after her first

invocation. See Meade, 327 Or at 341-42 (concluding that the

statements following the defendant’s invocation were “the

result of free, unconstrained, and informed choice” (internal

quotation marks omitted)).

That reasoning, however, does not apply to defen-

dant’s subsequent invocations. After defendant’s second

invocation, Hoberg understood that defendant was exer-

cising her right to remain silent. He therefore stopped the

interrogation and left the room. Hoberg waited only one min-

ute before reentering the room and asking the same ques-

tion that preceded defendant’s second invocation. Similarly,

defendant’s third invocation occurred in response to Fenley’s

question regarding Jeanette’s injuries. Rather than stop the

interview, Fenley persisted in questioning defendant about

Jeanette’s injuries.

Thus, we conclude that the statements defendant

made after her second and third invocations were not obtained

through defendant’s knowing and voluntarily waiver of her

right to remain silent, under Article I, section 12, of the

Oregon Constitution. We conclude that defendant unequivo-

cally invoked her right to remain silent under Article I, sec-

tion 12, and the detectives violated defendant’s rights when

they persisted in questioning her after her second and third

invocations. As a result, defendant’s statements from the

first interrogation that occurred after her second invocation

should have been suppressed pretrial and were improperly

admitted during the penalty-phase proceeding.

We now consider whether defendant’s statements

in her subsequent interrogations were obtained in violation

of her right to remain silent under either the state or fed-

eral constitution. In State v. Jarnagin, 351 Or 703, 716-17,

277 P3d 535 (2012), we examined whether a defendant’s

later decision to speak to officers was a product of an ear-

lier Miranda violation. We explained that relevant factors

458 State v. McAnulty

to consider include the nature of the initial violation, the

amount of time between the violation and the defendant’s

later statements, whether the defendant remained in cus-

tody between the violation and the later statements, and

whether there was a change in time and circumstances. Id.

Turning to the evidence, we note that defendant’s

second interrogation occurred immediately after the state-

ments that were obtained during the first interrogation.

There was no significant temporal break, and the same par-

ties were present in the same room. There was also no sig-

nificant difference in the quality of the statements elicited.

Based on those circumstances, we conclude that defendant’s

statements in her second interrogation were an extension of

the statements illegally obtained during her first interroga-

tion and that they also should have been suppressed pretrial

and were improperly admitted during the penalty-phase

proceeding.

However, we conclude that the statements defen-

dant made during the third and fourth interrogations were

not a product of the earlier illegality. As noted, the detec-

tives stopped questioning defendant for a period of one hour

after the second interrogation. Defendant then initiated the

third interrogation by stating that she had something to tell

Hoberg and Smith. See Meade, 327 Or at 340-42; Edwards,

451 US at 484-85. She requested to speak with them pri-

vately and provided additional admissions about certain

aspects of her abusive acts against Jeanette. Many of those

statements were qualitatively different from the more lim-

ited admissions that she had made previously. See Jarnagin,

351 Or at 722 (noting that the defendant had not previously

admitted to specific criminal conduct in unwarned inter-

view, so subsequent interview was not a repeat of earlier

violation); Missouri v. Seibert, 542 US 600, 616-17, 124 S Ct

2601, 159 L Ed 2d 643 (2004) (analyzing same consider-

ations under the federal constitution).

Defendant likewise waived her rights at the initia-

tion of the fourth interrogation. When a person invokes her

right to remain silent, police may reinitiate contact after a

reasonable time, provide new Miranda warnings, and obtain

a valid waiver. See State v. Stilling, 285 Or 293, 302-03, 590

Cite as 356 Or 432 (2014) 459

P2d 1223, cert den, 444 US 880 (1979) (so holding); Michigan

v. Mosley, 423 US 96, 104-06, 96 S Ct 321, 46 L Ed 2d 313

(1975) (same). In this case, the fourth interrogation occurred

approximately six hours after the third and after defendant

had initiated a discussion in the third interrogation. At that

point, Hoberg and Smith again advised defendant of her

Miranda rights. Defendant acknowledged that she under-

stood them and signed a form to that effect. She answered

the detectives’ questions and did not again invoke her right

to remain silent. Thus, we conclude the statements elicited

in the third and fourth interrogations were not obtained in

violation of defendant’s constitutional rights.

Defendant also claims that the detectives’ uncon-

stitutional conduct during the first interrogation created a

coercive environment that rendered her subsequent state-

ments involuntary. Under both Article I, section 12, and the

Fifth Amendment, a person’s statements are voluntary if,

under the totality of the circumstances, the person’s “ ‘will

was not overborne and his capacity for self-determination

was not critically impaired.’ ” Acremant, 338 Or at 324 (quot-

ing State v. Vu, 307 Or 419, 425, 770 P2d 577 (1989)); see

also Schneckloth v. Bustamonte, 412 US 218, 225-26, 93 S Ct

2041, 36 L Ed 2d 854 (1973). We review the voluntariness

of defendant’s statements for errors of law and are bound by

the trial court’s findings of historical fact if supported by the

record. State v. Terry, 333 Or 163, 171, 37 P3d 157 (2001),

cert den, 536 US 910 (2002).

Applying that standard, we reject defendant’s con-

tention that the detectives used coercive tactics that ren-

dered defendant’s subsequent statements involuntary. The

trial court found that defendant’s statements were not

obtained by threats or promises, and that finding is sup-

ported by the record. Additionally, as previously discussed,

defendant was given Miranda warnings before any state-

ments were obtained, she initiated the third interrogation,

and she was given Miranda warnings before the fourth

interrogation. Her statements in the third and fourth inter-

rogations were also qualitatively different from those that

had preceded. Thus, the trial court did not err in concluding

that defendant’s statements were voluntary.

460 State v. McAnulty

The remaining question is whether the admission

during the penalty phase of the statements improperly

obtained during the first and second interrogations was

harmless. We begin with the state constitutional standard.

Article VII (Amended), section 3, of the Oregon Constitution

governs whether an appellate court must affirm a conviction

even though a legal error occurred during the trial. State

v. Davis, 336 Or 19, 28, 77 P3d 1111 (2003). That provision

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.

In determining whether to affirm a judgment under

that constitutional provision, this court reviews the record

to decide whether there was “little likelihood” that the error

affected the jury’s verdict. Davis, 336 Or at 32; see also

State v. Lopez-Minjarez, 350 Or 576, 587, 260 P3d 439 (2011)

(concluding “that the erroneous instruction had no signifi-

cant likelihood of affecting the jury’s verdict”). The focus of

that inquiry “is on the possible influence of the error on the

verdict rendered, not whether this court, sitting as a fact-

finder, would regard the evidence of guilt as substantial and

compelling.” Davis, 336 Or at 32. In Davis, this court con-

cluded that the erroneous exclusion of evidence was harm-

ful. Davis, 336 Or at 33-35. The court reasoned that the

evidence excluded was integral to the defendant’s case and

influential because it substantiated the defendant’s version

of events. Id. at 34. The court further reasoned that the evi-

dence was not “duplicative or unhelpful” to the jury and was

not cumulative, because the excluded evidence was “qualita-

tively different than the evidence that the jury heard.” Id. at

33-34.

Applying those harmless error principles, we con-

clude, on the particular facts of this case, that the trial court’s

error in admitting the statements illegally obtained during

defendant’s first and second interrogations was harmless. As

noted, the illegally obtained statements were more limited in

Cite as 356 Or 432 (2014) 461

nature than those obtained from the third and fourth inter-

rogations. The illegally obtained statements included only

admissions that defendant had “spanked” Jeanette three

times with either a belt or stick, had controlled and lim-

ited Jeanette’s water supply, had cleaned up some evidence

of abuse, had caused an injury that had exposed Jeanette’s

bone, and had attempted to treat Jeanette’s injuries herself.

Defendant otherwise maintained that Jeanette’s additional

injuries were caused by Richard or by Jeanette falling down.

In contrast, defendant provided more substantial

admissions of certain aspects of the abuse in the third and

fourth interrogations. She admitted to repeatedly whipping,

hitting, and kicking Jeanette all over her body; and hitting

Jeanette so hard that Jeanette fell and seriously injured

her head. Those admissions were properly admitted at trial.

Moreover, as noted, defendant pleaded guilty before she pro-

ceeded to sentencing. In her plea petition, defendant admit-

ted to the “intentional maiming and torturing” of Jeanette.

That admission was properly before the jury in its delibera-

tions on whether defendant should receive the death penalty.

In considering the effect of the improperly admit-

ted evidence in light of the admissions that were properly

admitted and the guilty plea, we conclude that the jury

would have regarded the improperly admitted evidence as

duplicative or unhelpful. See Davis, 336 Or at 33-34 (relying

on the same considerations); see also State v. Randant, 341

Or 64, 74, 136 P3d 1113 (2006), cert den, 549 US 1227 (2007)

(any error in admitting some statements harmless in light

of more detailed and prejudicial statements). The evidence

did not have a tendency to affect the jury’s verdict, and its

erroneous admission was harmless.

The same result follows under the Fifth Amendment.

Once a person exercises her Fifth Amendment “right to

cut off questioning,” police must “scrupulously honor” that

request and cease the interrogation. Mosley, 423 US at 104.

A person may knowingly and voluntarily waive the right.

Edwards, 451 US at 482. However, without a waiver, police

violate a person’s right if they fail to “honor a decision of a

person in custody to cut off questioning, either by refusing to

discontinue the interrogation upon request or by persisting

462 State v. McAnulty

in repeated efforts to wear down his resistance and make

him change his mind.” Mosley, 423 US at 105-06. For the

reasons stated above, we conclude that the detectives’ con-

duct after defendant’s second and third invocations violated

defendant’s Fifth Amendment right to remain silent.

Under the Fifth Amendment, “before a federal con-

stitutional error can be held harmless, the court must be

able to declare a belief that it was harmless beyond a rea-

sonable doubt.” Chapman v. California, 386 US 18, 24, 87

S Ct 824, 828, 17 L Ed 2d 705 (1967); see also Delaware v.

Van Ardsdall, 475 US 673, 684, 106 S Ct 1431, 89 L Ed 2d

674 (1986) (reviewing court must consider the importance of

the improperly admitted testimony, whether the testimony

was cumulative, the presence or absence of corroborating

or contradicting testimony, and the overall strength of the

prosecution’s case). Under the federal standard, we conclude

that admission of the statements in question was harmless

beyond a reasonable doubt.

B.  Dismissal of prospective jurors

During jury selection, the trial court granted the

prosecution’s for-cause challenge to prospective jurors Howe,

Gonzalez, and Brown. The trial court also dismissed sua

sponte prospective juror Thurston. In her fourth assignment

of error, defendant argues that, in excusing those jurors for

cause, the trial court violated her right to an impartial jury.

Article I, section 11, of the Oregon Constitution and

the Sixth Amendment to the United States Constitution

guarantee the right to an impartial jury during criminal

proceedings. To protect that right, the trial court may excuse

a prospective juror for actual bias. See ORCP 57 D(1)(g);

ORS 136.210(1) (making ORCP 57 D(1)(g) applicable to

criminal trials). In assessing whether a prospective juror

should be excused for actual bias, the question is whether

the juror’s “ ‘ideas or opinions would impair substantially his

or her performance of the duties of a juror to decide the case

fairly and impartially on the evidence presented in court.’ ”

State v. Fanus, 336 Or 63, 83, 79 P3d 847 (2003), cert den,

541 US 1075 (2004) (quoting State v. Barone, 328 Or 68,

74, 969 P2d 1013 (1998), cert den, 528 US 1135 (2000)); see

also ORCP 57 D(1)(g); Wainwright v. Witt, 469 US 412, 424,

Cite as 356 Or 432 (2014) 463

105 S Ct 844, 83 L Ed 2d 841 (1985) (stating essentially the

same standard). The trial court must look to “the totality of

the potential juror’s voir dire testimony to discern whether

it suggests the probability of bias.” State v. Lotches, 331 Or

455, 474, 17 P3d 1045 (2000), cert den, 534 US 833 (2001)

(internal quotation marks omitted). As we have explained,

“it is not enough that a prospective juror believes that he can

be fair and impartial. The trial court * * * must find from all

the facts that the juror will be impartial and fair and not be

consciously or unconsciously biased.” Montez, 309 Or at 575.

A prospective juror’s “approval of or opposition to

the death penalty alone is not determinative of whether the

juror may serve as a juror or must be excused.” Montez, 309

Or at 575; State v. Nefstad, 309 Or 523, 536, 789 P2d 1326

(1990) (same); Witt, 469 US at 424 (stating similar rule).

As the United States Supreme Court explained in Adams

v. Texas, 448 US 38, 50, 100 S Ct 2521, 65 L Ed 2d 581

(1980), “to exclude all jurors who would be in the slight-

est way affected by the prospect of the death penalty or by

their views about such a penalty would be to deprive the

defendant of the impartial jury to which he or she is entitled

under the law.” However, a juror may be excused if the juror

indicates that he or she cannot put aside personal views and

decide the case impartially and in accordance with the law.

In Nefstad, this court affirmed the excusal of a prospective

juror who expressed opposition for the death penalty when

the juror indicated that he could not vote for the penalty.

309 Or at 536-38.

We review the trial court’s decisions excusing

jurors for abuse of discretion. Montez, 309 Or at 575; see also

Lotches, 331 Or at 473-74 (actual bias is a factual question to

be determined by trial court). “Because the trial court has

the advantage of observing a challenged prospective juror’s

demeanor, apparent intelligence, and candor,” we accord

great deference to the trial court’s judgment as to the pro-

spective juror’s qualifications. State v. Compton, 333 Or 274,

285, 39 P3d 833, cert den, 537 US 841 (2002); Montez, 309 Or

at 575. “We give greatest deference to the trial court when a

juror’s answers are contradictory or unclear.” Compton, 333

Or at 286; see also Nefstad, 309 Or at 537-38; Witt, 469 US at

429 (noting that the “predominant function” of trial judge in

464 State v. McAnulty

determining juror bias “involves credibility findings whose

basis cannot be easily discerned from an appellate record”).

We now review each excusal.

1.  Prospective juror Howe

After defendant questioned and passed prospective

juror Howe, the prosecutor asked:

“Q.  * * * Do you think you could decide whether or not

this living, breathing human being deserves to die for the

crime she committed?

“A.  Probably, yeah.

“Q.  And I ask you that because I notice there was a lot

of ‘I don’t know’ or ‘I don’t understand,’ you know, responses

to some of these questions [in the juror questionnaire]—

“A. Yeah.

“Q.  —and so I—we need to take some time to figure

out what is it you’re thinking about when you say you don’t

understand. What comes to mind? You haven’t really elab-

orated on any of that with regard to the death penalty.

“A.  There w[ere] a few questions on there that I didn’t

really understand—

“Q. Yeah.

“* * * * *

“Q.  Ms. Howe, I’m looking at page 7 [of the juror ques-

tionnaire]. I’ll give you a chance to get there. And I’m look-

ing at (d) there. It’s basically asking you about, you know,

religious, moral or just even philosophical, you know, really,

objections to the death penalty. And you said there you

didn’t understand. Do you understand the question or—

“A.  Um, yeah, the question.

“* * * * *

“Q.  All right. And so that’s sort of what the question’s

getting at there. You know, if you have beliefs maybe reli-

gious or otherwise that would actually, you know, prohibit

you from making this kind of decision?

“A. Yeah.

“Q.  Can you expand on that? Do you have any such

beliefs?

Cite as 356 Or 432 (2014) 465

“A.  I’m not sure. I don’t think so.

“Q.  And what would happen if you ended up sitting on

the jury is you’d be posed, essentially, with four questions;

and three of those would be highly factually driven, and

the fourth is a discretionary one, and it would be: ‘Do you

think the defendant should receive the death penalty?’ And

again, I want to—would you be able to personally make

that decision?

“A. Yeah.

“Q.  Why? What would you be looking for? What kind of

evidence?

“A.  I’m not sure. I mean, it would have to be pretty

good evidence to decide that. I don’t know. I mean—

“Q.  That’s what I’m getting at. Do you know you could

do this or are you still unsure?

“A.  I’m still pretty unsure.

“Q.  And it’s okay. You’re in a tough spot and there’s no

right or wrong answer. This is just the time that we would

need to find that out now rather than later—

“A. Yeah.

“Q.  —if you could do that. And so, again, you know,

if charged with the responsibility of deciding, are you just

unsure if you’d be able to consider death penalty for this

defendant?

“A.  Yeah, I’m pretty unsure.”

The prosecutor then asked that Howe be removed for cause.

On defense counsel’s attempt to rehabilitate Howe,

the following exchange occurred:

“Q.  It’s a tough position. I hope we’re not picking on

you at all. I appreciate your being honest about it. But you

did say in the questionnaire that you do—you do believe in

the death penalty?

“A. Yeah.

“Q.  Is that correct?

“A. Yeah.

“Q.  And it’s one of the three [possible sentences] you

would consider?

466 State v. McAnulty

“A. Yeah.

“Q.  But it wouldn’t be easy to make that vote?

“A. Yeah.

“Q.  But could you make that vote if the facts came in—

“A. Yeah.

“Q.  —and the instructions came in and you decided in

your mind and conscious [sic] that that’s the decision that

has to be made?

“A. Yeah.

“Q.  But you also would consider the other two [sen-

tencing options] and might impose any of the three [sen-

tencing options], correct?

“A. Yeah.”

Defense counsel then objected to the excusal of juror Howe.

The trial court granted the state’s motion and excused Howe.

Defendant argues that Howe’s statements generally

demonstrated a willingness to consider the evidence not-

withstanding her hesitancy about questions relating to the

death penalty. We agree that neither Howe’s indication that

it would be difficult to vote to put a person to death or her

statement that, to garner her vote, the evidence would have

to be “pretty good,” constituted sufficient reason to exclude

her for actual bias. The decision that Howe and other jurors

were asked to make was indeed difficult, and the jury is

required to base its sentencing decision on the evidence

presented. The fact that Howe stated, at the outset of the

case, that to support a sentence of death, evidence would

have to be “pretty good” was not an indication that Howe

would not be able to make her sentencing decision fairly and

impartially.

That does not mean, however, that the trial court

erred in excluding Howe. The state challenged Howe for

“cause,” and a trial court permissibly may grant such a

motion for reasons other than actual bias. See ORCP 57

D(1)(a), (b) (challenges for cause); ORS 136.210(1) (applying

ORCP 57 D(1)(a) and (b) to criminal cases). Howe expressed

confusion and a lack of comprehension with respect to a

Cite as 356 Or 432 (2014) 467

number of questions appearing on the juror questionnaire

and in response to questions directed to her during voir

dire. In addition, Howe said that she was unsure whether

she could make the sentencing decision that she would be

required to make. The trial court could have understood

Howe’s response as an indication that she did not have the

ability to make any sentencing decision, rather than as an

indication that she was biased in favor or against any par-

ticular sentencing decision.

We have carefully reviewed the voir dire of all of

the jurors in this case and are satisfied that the trial court

correctly considered whether the jurors exhibited actual

bias that would impair their ability to make the sentenc-

ing decision fairly and impartially. The record demonstrates

that a number of jurors stated that the sentencing decision

would be difficult or that the evidence indicating that death

should be imposed would have to be persuasive, but who,

nevertheless, remained on the jury panel after challenges

for cause were taken. In fact, in one instance, a juror stated,

in response to questions by the prosecutor, that it would be

“hard to imagine anything heinous enough that you would

have to vote for the death penalty. It’s hard.” Nevertheless,

the court denied the state’s challenge for cause. That juror

was different from Howe, however, in that she exhibited a

strong ability to understand the complex issues presented

and to follow the court’s instructions.

We conclude that the trial court was in a position

to assess Howe’s demeanor and qualifications and did not

abuse its discretion in excluding her for cause other than

actual bias.

2.  Prospective juror Gonzalez

During defense questioning, prospective juror

Gonzalez agreed that the death penalty may be proper in

some cases, but stated that she would want to know “the

why’s and why not’s.” After the defense passed Gonzalez, the

prosecutor asked her the following:

“Q.  Ms. Gonzalez, I notice in a lot of your answers, you

make reference to counseling, you know, getting help for

people. What does that mean to you when you think about

a death penalty case? What are you thinking?

468 State v. McAnulty

“A.  Well, there’s a reason why it happened, and some-

times by going to counseling or seeing somebody to talk

about why, there’s a reason behind that. And something

could have happened in their past or in their situation. And

so—and only that person that they talk with is going to

know that.

“Q.  Hypothetically speaking, let’s say you do get that

sort of information, why are you looking for that sort of

information? Does that somehow reduce culpability in your

mind?

“A.  Maybe. Maybe to justify it, maybe, in my mind.

“Q.  And conversely, what if you never hear why the

defendant killed her daughter? You learn about what hap-

pened, but you’re never really satisfied about why or maybe

the psychological or—

“A.  I don’t know. I would probably ask myself ques-

tions, I guess.

“Q.  Would that impair your ability to decide whether

her crime deserved the death penalty?

“A.  I’m not sure.

“Q.  If that itch was never scratched, you know, could

you bear the responsibility of deciding whether the crime

itself deserved—

“A.  Probably not.

“Q.  And so then you wouldn’t, of course, be able to con-

sider the death penalty.

“A. Correct.”

The prosecutor moved that Gonzalez be removed for cause.

Defense counsel then attempted to rehabilitate

Gonzalez. On defense questioning, Gonzalez agreed that she

was not categorically against the death penalty and would

keep “an open mind.” Defense counsel then informed the

court that the defense opposed the excusal of Gonzalez. The

court provided a brief explanation of the death penalty sen-

tencing process, after which the prosecutor resumed with

the following questioning:

“Q.  And with regard to that, as the Court’s told you,

you are not—you know, it’s not required that you hear why.

Cite as 356 Or 432 (2014) 469

You may never hear why and it’s not one of the [four ques-

tions required to impose the death penalty]. And I’ll just

restate my question. Then knowing that you’d have a pos-

sibility of, you know, [imposing a sentence of] life without

parole after 30 years, would there be any circumstance

under which you would consider whether the death penalty

is appropriate?

“A.  I can’t—I don’t know.

“Q.  You had answered no before, and was there some-

thing that changed?

“A.  (No response.)

“Q.  There’s no right or wrong answer.

“A.  I really can’t—I don’t know. I can’t say. I’m sorry. I

don’t know the answer to that question.

“Q. Okay.”

The court then asked a question:

“COURT:  And it’s difficult. I mean I can’t imagine in

any other place or any other moment in somebody’s life is

there a discussion that takes place like this. We’re asking

something very serious. One way to put it, thinking about

this now, do you either favor or rule out any of the three

[sentencing] options?

“A.  I don’t favor them and I don’t rule them out.”

The prosecutor renewed the challenge, arguing that “the

answer ‘I don’t know’ still doesn’t quite get us to what the

juror would be required to do if she were to sit on the jury.”

The trial court then excused Gonzalez for cause.

Defendant asserts that Gonzalez’s statement that

she would keep an open mind and consider all three sen-

tencing possibilities demonstrated her qualifications, and

that her difficulty with imposing the death penalty if the

question “why the defendant killed her daughter” was not

answered was merely Gonzalez’s acknowledgement of the

gravity of the death penalty decision. That is one way of

looking at the voir dire. However, our review of the tran-

script indicates that the trial court took great pains to out-

line for Gonzalez the four questions that the jurors would

be required to answer and, immediately after having heard

470 State v. McAnulty

that explanation, Gonzalez answered the question, “would

there be any circumstances under which you would con-

sider whether the death penalty is appropriate?” by saying

“I can’t—I don’t know.” The trial court may well have con-

cluded that Gonzalez was unable to make the weighty deci-

sion that would be required in a death penalty case and not

that she was actually biased against or in favor of defendant

or the state.

Defendant alternatively suggests that the prose-

cutor’s question asking whether Gonzalez would need to

know “why” defendant killed her daughter was improper

for two reasons. First, defendant contends that the prose-

cutor’s question essentially asked Gonzalez to comment in

advance how she would react to certain evidence. Defendant

equates the “why” question here to the “improper” question

posed in Montez where the prosecutor asked whether spe-

cific pieces of evidence—e.g., the victim being “hog-tied,”

“sexually abused,” “strangled,” and “burned”—would make

the prospective juror “angry.” 309 Or at 592. Second, defen-

dant argues that the “why” question impermissibly asked

Gonzalez to positively state whether she would vote for the

death penalty. Defendant submits that the United States

Supreme Court rejected that type of questioning in Adams,

which held it improper to exclude jurors who “were unable

positively to state whether or not their deliberations would

in any way be affected” by the possibility of the death pen-

alty. 448 US at 50 (internal quotation marks omitted).

The state responds that the prosecutor permissi-

bly asked the “why” question because it tended to expose

the risk that Gonzalez would not follow the court’s instruc-

tions if defendant’s motives were not explained at trial. In

the state’s view, the “why” question at issue here is different

from positing specific evidence and asking a juror to pre-

judge the case, which this court found improper in Montez.

We do not think that the prosecutor’s question about

a potential lack of evidence regarding defendant’s motive is

improper. Unlike Montez, the question did not “ask[ ] the

juror to comment in advance on how [she] would react to

specific evidence.” Montez, 309 Or at 584. Rather, it gen-

erally referred to the potential lack of evidence relating to

Cite as 356 Or 432 (2014) 471

defendant’s motive. The question was also unlike that posed

in Adams because it did not tend to suggest that the pos-

sibility of the death penalty itself would affect Gonzalez’s

deliberations. We therefore conclude that the trial court’s

decision to excuse Gonzalez fell within the proper exercise

of its discretion. Montez, 309 Or at 574-75.

3.  Prospective juror Brown

After defendant questioned and passed prospective

juror Brown, the prosecutor asked:

“Q.  Mr. Brown, before anybody here at counsel table

had a chance to talk to you, it looks [from your question-

naire] like you actually strongly disagree with the death

penalty. Even if the facts and laws justify it, you disagree.

Before any lawyers talked to you.

“A.  I may disagree, but like I stated in my question-

naire, I believe in the rule of law. If I felt that strongly about

it I would protest against it until the law changed. I really

haven’t done that. So I do feel that there are extenuating

circumstances which would call for the death penalty and

be justified.

“Q.  You mentioned it. It must be the only course of

action remaining. And of course that’s not the case. There

are three [sentencing] options.

“A. Yes.

“* * * * *

“Q.  —would you look for the other options.

“A.  Well, I think that what I feel as a person in society

is one of the things I’ve used to measure the decision. The

next step is what happens after the court is done. What

happens to the defendant? What happens to how she inte-

grates into society and how she should live in society? What

her intentions are that she has to society and those that

would be affected. I think that the knowledge just isn’t in

here. This is a continuing—

“Q. Understood.

“* * * * *

“Q.  There are two other [sentencing] options, though.

“A. Yes.

472 State v. McAnulty

“Q.  Based on what you’re telling me it doesn’t look

like to me as though you’d ever consider the death penalty,

because you wouldn’t have to.

“A.  That is true. But this is an issue I would have to

consider. But if the other 11 jurors are strongly in favor

of [the death penalty], I would have to take a moment to

understand why is it I might be coming from a different

perspective. And then I would do my job to either under-

stand what they’re saying and why they feel that way or to

give it some more thought. But with that said, I have not

heard the specifics of the case. And when I say it must be

the only option and it must be the only option that is effi-

cient. The only option that is expedient.

“* * * * *

“Q.  What if one of the questions is * * * should the

defendant receive the death penalty, not the cause-and-

effect analysis, or what if you’re not given any of that infor-

mation. You just have to decide based on what she did,

whether she should die. Could you do it?

“A.  I certainly could. But I’m not going to give you a

statement right now.

“Q.  It’s something that is certainly important for all of

us up here to know before you be chosen as a juror whether

or not you would be able to make that decision.

“A.  Yes. I understand. Like I said, if a person presents

a clear and present threat to society, there’s no way that she

could be rehabilitated, there’s—it’s so grievous a crime that

no one—she can’t be suffered to live, I would say yes.

“Q.  Can you think of such a crime?

“A.  If I were to say I would never choose the death

penalty as an option, I would have stated that. I’m leaving

the chance open for that to be a possibility. I’m leaving the

chance open for that decision to be made. But it is true that

I’m strongly slanted against the death penalty for the rea-

sons I have stated.

“Q.  Do you think the State would have a fairly uphill

battle to overcome your personal bias?

“A.  I think that’s fair to say.”

At that point, the court explained that neither cost

nor efficiency were “a legal basis” for deciding whether to

Cite as 356 Or 432 (2014) 473

impose the death penalty. The prosecution resumed with the

following questions:

“Q.  With regard to that fourth question, whether or

not the defendant should receive the death penalty, given

the other options, would there ever be a reason you would

decide the death penalty?

“A.  I can’t state for sure in this case to answer the spe-

cifics, but again, if the crime was so grievous that there was

no—it seemed like the only solution was the death penalty,

I can see that situation occurring. I’m not going to wallow

in some type of fantasy to try and describe how that might

occur. Again, I’m not so closed to the death penalty that I

would say it’s not an option.

“Q.  And your strong bias, do you feel that that would

at least impair—would that be a better word—your ability?

Would that be more fair to say?

“A.  I would say that just as much as you are fighting—

if that’s what I’m hearing, that you are fighting for the death

penalty, then I would say just as much that I am fighting

to have justice served that would probably not include the

death penalty.”

The prosecutor then moved to excuse Brown for cause.

The defense attempted to rehabilitate Brown:

“Q.  And we’ve been back and forth and I don’t want

to pick on you any longer, but can you sit on the jury, take

an oath, and consider all three as possible sentences after

you’ve heard the evidence, of course?

“A.  Well, I think what seems to be—there is no legal

guidance on what the penalty should be. And I think a

person must have some sort of framework with which to

decide what is appropriate. And what I’m being clear to you

is that my framework put the death penalty below the time

in prison, or the other two [possible sentences], basically.

That’s all I’m saying.

“Q.  But that doesn’t eliminate it from your considered

decision?

“A.  Not at all.

“Q.  All right.”

The trial court ultimately excused Brown for cause.

474 State v. McAnulty

Defendant argues that Brown expressed an abil-

ity and a willingness to follow the court’s instructions and

consider all potential sentences, notwithstanding his dis-

approval of the death penalty. Defendant contends that

Brown’s statements reflect the gravity with which jurors

properly should treat such a decision. However, just before

Brown was examined, the court had granted, over the state’s

objection, defendant’s motion to exclude a juror who had

said that she was “for [the] child” and that defendant would

have a huge uphill battle getting her to impose a penalty

other than death. After the court’s ruling, the state asked

to speak with the court. The state pointed out its under-

standing that, “even if a juror is leaning toward one result

or another, that doesn’t necessarily disqualify them,” as

long as the juror agrees that the juror will consider all the

options, and that that standard “cuts both ways.” The court

responded by explaining why its practice was to retain some

but not all jurors who agree that they will consider all of the

sentencing options. The court said that, when jurors come

into the evidentiary process with an expressed position on

one option or another, the court was inclined to accept that

as “a very accurate and sincere statement of how they look

at the case,” and that, although there could be “wrestling”

to get jurors to commit to being fair and impartial, “mov-

ing them semantically” did not necessarily give the court an

accurate view of the jurors’ beliefs. The court stated, to be

blunt, “the idea that somebody who expresses an opinion one

way or the other can sort of be talked back to the middle I

don’t find it particularly helpful unless it is clear to me that

their first statement of how they feel or their initial state-

ments or their explanation somehow did not correctly reflect

how they feel” about imposing the death penalty.

That is the case with Brown. He stated on the juror

questionnaire that he filled out before coming to court that

he “strongly disagreed” with the death penalty. Although on

questioning Brown stated that he would consider sentencing

defendant to death, he also said that he would “fight” to “have

justice served that would probably not include the death

penalty.” The trial court did not err in deciding that Brown’s

opinions would substantially impair his ability to decide the

case fairly and impartially. The trial court treated Brown’s

Cite as 356 Or 432 (2014) 475

statements that he would consider imposing the death pen-

alty in the same way it had treated the statements of the

prior juror who stated that she would consider imposing a

sentence other than death—that is, as statements that did

not accurately reflect Brown’s true feelings. In the circum-

stance in which a juror expresses such a strong opinion for

or against the death penalty as did Brown, the trial court

acts within its discretion in declining to credit the juror’s

commitment to impartiality.

4.  Prospective juror Thurston

During defense questioning, defense counsel asked

prospective juror Thurston about comments that he made in

his juror questionnaire. The following exchange occurred:

“Q.  I’m going to—you know, you did this questionnaire

for us and we thank you for it.

“A. Un-huh.

“Q.  It gives us a lot of things to talk about. But I’m

going to jump through [to] the portion about the death pen-

alty because you made some fairly strong comments there.

“A. Yes.

“Q.  [Defendant] is on trial for her life—

“A.  I understand.

“Q.  —and she is entitled to have objective, fair jurors,

as the State is—

“A. Un-huh.

“Q.  —and they’re going to have to go in the jury room

now that she’s pled guilty and not decide she’s guilty or not,

just decide if she’s going to live or not.

“A. Exactly.

“Q.  Can you go to that jury room and keep an open

mind on those three possible [sentencing] verdicts, the life

with a chance of parole after 30 [years], life with no chance

of ever being paroled, or the death penalty?

“A.  No, I cannot.

“Q.  And I think I read a little bit, but can you tell me

how you feel?

476 State v. McAnulty

“A.  Well, it goes beyond religion and spiritual things.

Ever since I can remember, um, I hate to add fuel to the

flames, but I grew up in Oakland, California, and unfortu-

nately, some aspects of what you hear are true. Not to the

degree that you hear—things are blown way out of propor-

tion but, of course, I’ve had friends that died. I’ve lived in

a neighborhood where you hear gunshots at night. Even

at the youngest point, there was something inside me that

said I do what I can for my country, but I can’t be a soldier

because there’s something in me that cannot take a life.

* * * I would lose a part of myself. And if any way, shape, or

form possible that I would not have to do that, I would not. I

have a hard time—I do understand the concept. I do under-

stand the whole capital punishment situation. However,

people who are on trial for murders have their reasons for

murdering and as a general rule, no matter what the rea-

soning, the State or the federal government always says,

‘You cannot do this. You are not allowed to do this.’ But

then again, we have our reasons and we say it’s okay to do

it when it comes to capital punishment. That, to me, just

doesn’t make sense.”

As defense counsel began asking another question, the trial

court interrupted, stating, “I think Mr. Thurston has artic-

ulated how he feels about these issues, and I’m not sure how

much more inquiry is going to be of value in this process.”

The court then excused Thurston sua sponte. Defendant

did not object or request to ask any additional questions of

Thurston.

Although Thurston expressed a strong view against

imposing the death penalty, defendant contends that the

trial court erred in cutting off defense counsel’s inquiry and

sua sponte excusing him. Defendant cites Morgan v. Illinois,

504 US 719, 736-39, 112 S Ct 2222, 119 L Ed 2d 492 (1992),

in support of her position that she was entitled to rehabil-

itate Thurston. However, Morgan is inapposite. In Morgan,

the trial court conducted voir dire and denied the defendant’s

specific request to ask prospective jurors about their ability

to give fair consideration to mitigation evidence. Here, defen-

dant did not object or specifically request to ask additional

questions. Defendant does not explain how the trial court’s

decision to cut off defense counsel’s inquiry of Thurston prej-

udiced her when she did not object or request to ask further

Cite as 356 Or 432 (2014) 477

questions of him. Further, nothing in the record suggests

that defendant could have rehabilitated Thurston. To the

contrary, Thurston stated that his inability to impose the

death penalty “goes beyond religion and spiritual things” to

his personal experience of having friends that died when he

was young. He stated that,

“[e]ven at the youngest point, there was something inside

me that said I do what I can for my country, but I can’t be

a soldier because there’s something in me that cannot take

a life. * * * I would lose a part of myself. And if any way,

shape, or form possible that I would not have to do that, I

would not.”

On this record, we conclude that the trial court did not err

in excusing Thurston sua sponte when defendant did not

object to the excusal or request to ask further questions. See

also Nefstad, 309 Or at 536-38 (excusal affirmed when juror

stated that he could not vote for the death penalty).

C.  Future dangerousness

After presentation of the evidence in a penalty-

phase trial, the trial court submits four sentencing questions

to the jury. See ORS 163.150(1)(b) (specifying questions).

In her tenth assignment of error, defendant challenges the

trial court’s denial of her motion for a judgment of acquittal

on the second sentencing question, which required the jury

to assess whether “there is a probability that the defendant

would commit criminal acts of violence that would consti-

tute a continuing threat to society.” ORS 163.150(1)(b)(B).

In reviewing a denial of a motion for judgment of

acquittal, this court considers whether a rational trier of

fact could have found, beyond a reasonable doubt, a prob-

ability that the defendant would commit future criminal

acts of violence. State v. McDonnell, 343 Or 557, 579, 176

P3d 1236 (2007), cert den, 555 US 904 (2008); see also State

v. Longo, 341 Or 580, 604, 148 P3d 892 (2006), cert den,

552 US 835 (2007) (noting that jury must find probability

of future violence beyond a reasonable doubt) (citing ORS

163.150(1)(d)); State v. Moore, 324 Or 396, 431-33, 927 P2d

1073 (1996) (noting that rational juror standard applies to

review challenge to jury findings under ORS 163.150(1)(b)).

478 State v. McAnulty

In so doing, we view the facts in a light most favorable to the

state and draw all reasonable inferences in the state’s favor.

State v. Lupoli, 348 Or 346, 366, 234 P3d 117 (2010).

Defendant contends that the state failed to estab-

lish beyond a reasonable doubt a probability that she will

commit future criminal acts that constitute a continuing

threat to society. First, defendant argues that the only evi-

dence of any “criminal acts of violence” admitted at trial

directly relate to her aggravated murder conviction—i.e.,

her past acts of abuse that culminated in Jeanette’s death.

Defendant submits that the state cannot establish her

propensity for committing future criminal acts of violence

based solely on the acts underlying her aggravated murder

conviction because it would render the statutory question

of future dangerousness superfluous. See, e.g., Cloutier, 351

Or at 98 (we will construe a statute with multiple parts in

a way that gives effect to all parts). Without the evidence of

defendant’s past abuse of her daughter, defendant contends

that the record was limited to evidence that (1) she lacks a

criminal record of committing violent acts; (2) she did not

abuse her other children living in the home at that time;

(3) she did not engage in significant criminal activity while

incarcerated; and (4) she did not suffer from any diagnosed

psychological or character condition that indicated a general

propensity for violence.

Defendant’s argument fails in light of the factual

record in this case. As we have previously explained, the

question posed in ORS 163.150(1)(b)(B), commonly known

as the “future dangerousness” question, “makes relevant any

evidence that is probative of whether a defendant is likely to

engage in dangerous, criminal conduct in the future.” Moore,

324 Or at 415; see also Longo, 341 Or at 604 (noting that

“probability” as used in ORS 163.150(1)(b)(B) means “more

likely than not”). This court has consistently interpreted the

future dangerousness question as permitting consideration

of a broad range of evidence during penalty-phase proceed-

ings. That evidence includes, but is not limited to, evidence

of a defendant’s “entire previous criminal history,” a defen-

dant’s “unadjudicated bad acts,” and “evidence of a defen-

dant’s previous bad character.” See Moore, 324 Or at 416

(internal quotation marks, citations, and emphasis omitted).

Cite as 356 Or 432 (2014) 479

We have also stated that such evidence may include consid-

eration of the extreme “brutality” by which the defendant

committed a crime. State v. Barone, 329 Or 210, 244-45, 986

P2d 5 (1999), cert den, 528 US 1086 (2000).

Defendant’s reading of the evidentiary record is too

narrow. Before her two youngest children were born, defen-

dant lost custody of Jeanette and her two eldest sons due to

defendant’s drug use, neglect, and physical abuse. Her two

eldest sons refused to return to her care. There was testimony

that defendant abused Jeanette shortly after she regained

custody of her, which occurred several years before the fam-

ily moved to Oregon. Once the family moved to Oregon, the

evidence showed that defendant began isolating Jeanette for

more severe abuse and physically assaulted Richard. The

testimony recounting defendant’s demeanor after Jeanette’s

death suggested a lack of empathy for the prolonged suffer-

ing that Jeanette endured. The state further submitted evi-

dence showing that defendant had attempted to manipulate

jail staff while incarcerated and awaiting trial.

The evidence also showed that, over the course of

many months, defendant punched and kicked Jeanette all

over her body, causing bruising and cuts and sometimes

knocking out her teeth. Defendant increasingly isolated

Jeanette and tortured her for months before her death.

Although Jeanette suffered a significant blow to her head

shortly before she died, the cause of death was listed as “multi-

factoral abuse and neglect.” Given the severity of Jeanette’s

prolonged starvation, dehydration, physical injuries and

localized infections, authorities were unable to pinpoint a

single cause of death.

Thus, the evidence of defendant’s pattern of conduct

leading up to Jeanette’s death showed the targeting and

isolation of a vulnerable victim over an extensive period of

time coupled with numerous acts of brutal violence. That

evidence was sufficient to permit an inference beyond a rea-

sonable doubt that it was probable that defendant would

commit future criminal acts of violence.

Second, defendant argues that, even considering

the violent acts against Jeanette and other family members,

the state failed to establish beyond a reasonable doubt that

480 State v. McAnulty

she would commit criminal acts of violence that would con-

stitute a continuing threat to society. In particular, defen-

dant argues that her violent acts were directed toward

only a sole victim or, at most, her family members. In other

words, defendant views her prior behavior as involving only

a limited, narrow class of “criminal acts of violence.” She

contends that the state failed to show that she would be able

to control or isolate any person in a similar fashion while

imprisoned with other adults. She also notes that, even if

she were eventually released from prison, her surviving

children would be grown and her ability to procreate would

be unlikely. She argues that the jury could not reasonably

conclude that she would likely commit violent criminal acts

that would pose a continuing threat to society in the future.

This court has not determined that the type or class

of victims—i.e., a child or family members—necessarily

places a limitation on an assessment of future dangerous-

ness. ORS 163.150(1)(b)(B), as noted, asks a jury to assess

whether “there is a probability that the defendant would

commit criminal acts of violence that would constitute a con-

tinuing threat to society.” The text of the statute is written

in broad terms. It does not place a limitation on the type of

violent criminal acts that a jury may consider, nor does it

require a jury to relate a defendant’s potential to commit

criminal acts to a particular subset of society.

To the contrary, in assessing future dangerousness,

this court has held that “threat to society” as used in the

statute contemplates “the threat to all of society, no matter

whether the universe of that society be great or small.” State

v. Douglas, 310 Or 438, 450, 800 P2d 288 (1990) (internal

quotation marks omitted); see also State v. Farrar, 309 Or

132, 175-76, 786 P2d 161, cert den, 498 US 879 (1990) (noting

that future dangerousness applies to everyone). As a result

of that broad meaning of “society,” “the task of the jury is to

consider, not where the defendant would be dangerous, but

whether the defendant would be dangerous.” Douglas, 310

Or at 450 (emphasis in original).

The evidence in the record shows that defendant

engaged in a prolonged pattern of torture and abuse against

a vulnerable victim. In the process, defendant engaged

Cite as 356 Or 432 (2014) 481

in domineering and manipulative behaviors to isolate

Jeanette and family members. While incarcerated, defen-

dant attempted to manipulate jail staff. From that evi-

dence, the jury could have reasonably inferred that defen-

dant would, with sufficient probability, target, control, and

dominate other individuals and commit criminal acts of vio-

lence against them. The jury could have reasonably found

it probable that defendant would commit criminal acts of

violence that would constitute a continuing threat to society.

See Moore, 324 Or at 419 (prior incidents of violence directed

against racial minority students “tended to show that defen-

dant might engage in dangerous, criminal conduct in the

future”).

D.  Proposed jury instructions

Defendant submitted proposed jury instructions on

the issue of mercy. In her seventeenth assignment of error,

defendant asserts that the trial court erred in failing to give

those proposed instructions.

A party is generally entitled to a jury instruction if

the facts of the case warrant the instruction and the instruc-

tion is a correct statement of the law. State v. Washington,

355 Or 612, 653, 330 P3d 596 (2014) (citing State v. McBride,

287 Or 315, 319, 599 P2d 449 (1979)). A trial court does not

err in declining to give an instruction if the instruction is

not legally correct. Id. This court “review[s] a trial court’s

refusal to give a requested jury instruction for errors of law.”

State v. Reyes-Camarena, 330 Or 431, 441, 7 P3d 522 (2000).

Defendant proposed the following mercy instruction:

“MERCY

“The law recognizes and authorizes that any individual

juror may base the decision to impose a sentence less than

death on mercy alone.

“A juror is also authorized to consider feelings of mercy

that flow from the evidence. The law provides that mercy

alone is sufficient to support a life imprisonment verdict for

any juror.

“Each of you as jurors has the individual authority to

extend [defendant] mercy for any reason whatsoever.”

482 State v. McAnulty

(Boldface in original.) In her supporting memorandum,

defendant clarified that her requested instruction comprised

two instructions to be given in the alternative. Specifically,

she requested that the trial court give “one of the following

instruction[s] or one of a similar nature”:

“MERCY (Alternative 1)

“The law recognizes and authorizes that any individual

juror may base the decision to impose a sentence less than

death on mercy alone.

“MERCY (Alternative 2)

“A juror is also authorized to consider feelings of mercy

that flow from the evidence. The law provides that mercy

alone is sufficient to support a life imprisonment verdict for

any juror.”

(Boldface in original.) The trial court declined to give either

instruction.

On review, defendant contends that her proposed

alternative mercy instructions constitute correct statements

of the law not adequately covered by the instructions given

during her penalty trial. She submits that this court and

the United States Supreme Court have recognized that a

jury’s decision to afford an individual defendant mercy does

not violate the state or federal constitution.

In Washington, this court reviewed and rejected

essentially the same challenge to a proposed mercy instruc-

tion. The defendant’s proposed instruction in that case

would have instructed the jury that it could base its decision

whether to impose the death penalty “on mercy ‘alone’ and

‘for any reason whatsoever.’ ” Washington, 355 Or at 655. We

explained that this court has generally rejected that form

of instruction because it fails to inform jurors that their

decision must be based on the evidence before them. Id. at

654; see also Moore, 324 Or 396 at 428 (explaining that “any

instruction that appeals to the jurors’ sympathies also must

instruct the jurors that such sympathy must be based upon

the mitigating evidence before them”); State v. Moen, 309

Or 45, 92, 786 P2d 111 (1990) (affirming instruction that

correctly conveyed that “general sympathy, or any emotion-

alism, has no place in a capital sentencing decision, just as

Cite as 356 Or 432 (2014) 483

it has no place in the jury’s deliberations during the guilt

phase”).

We further observed in Washington that the federal

constitution imposes a similar standard. Specifically, we

noted that, in California v. Brown, 479 US 538, 107 S Ct 837,

93 L Ed 2d 934 (1987), the United States Supreme Court

“addressed whether an instruction that jurors must not

be swayed by ‘mere * * * sympathy’ in the penalty phase

of a capital case violated the defendant’s rights under the

Eighth and Fourteenth Amendments. Holding that it did

not, the Court emphasized that the key was not the mean-

ing of the word ‘sympathy,’ but the fact that the instruc-

tion properly cautioned the jury to base its decision only on

the evidence before it. Id. at 541. In the Court’s view, the

instruction properly ‘limit[ed] the jury’s sentencing consid-

erations to record evidence’ and, in so doing, ‘ensure[d] the

availability of meaningful judicial review’ of the jury’s deci-

sion. Id. at 543.”

Washington, 355 Or at 655. Applying those principles to the

defendant’s proposed mercy instruction, we concluded that

the instruction would have incorrectly informed the jury

that it could base its decision on “mercy alone” without con-

sidering other evidence in the record. Id.

Defendant’s proposed instructions in this case are

similarly flawed. Her first alternative instruction would have

informed the jury that it could base its decision “on mercy

alone.” Although defendant’s second alternative instruction

would have informed the jury that it could “consider feelings

of mercy that flow from the evidence,” it then stated that the

ultimate decision may be based on “mercy alone.” Thus, the

instructions did not reflect a correct statement of the law.

Accordingly, we conclude that defendant’s proposed mercy

instructions did not correctly state the law, and the trial

court did not err in refusing to give either instruction.

E.  Denial of Motion to Bar Application Of Death Penalty

and Alternative Demurrer

Before trial, defendant filed a “Motion to Bar Poten-

tial of Death Penalty or in the alternative, Demurrer,” in

which she presented several arguments challenging the

484 State v. McAnulty

indictment and the legality of Oregon’s death penalty. The

trial court denied defendant’s motion and alternative demur-

rer. In her eighteenth assignment of error on review, defen-

dant argues that the trial court erred in doing so. In bring-

ing her challenge, defendant submits several arguments for

this court’s consideration. Only one of those arguments mer-

its discussion.12

Defendant argues that the indictment fails to state

the crime of aggravated murder by abuse, ORS 163.115(1)(c).

Count 1 of the indictment charged defendant with aggra-

vated murder as follows:

“The defendant, on or about December 9, 2009, in Lane

County, Oregon, without legal justification or excuse, and

under circumstances manifesting extreme indifference

to the value of human life, did unlawfully and recklessly

cause the death, by neglect and maltreatment, of Jeanette

Marie Maples, born August 9, 1994, a dependent person,

in the course of and as a result of intentional maiming and

torture of the victim; contrary to statute and against the

peace and dignity of the State of Oregon[.]”

Criminal homicide constitutes murder “[b]y abuse”

when a person causes the death of a child who is “under 14

years of age or a dependent person,” and the death is caused

“by neglect or maltreatment.” ORS 163.115(1)(c). A “depen-

dent person” as used in the statute means “a person who

because of either age or a physical or mental disability is

dependent upon another to provide for the person’s physical

needs.” ORS 163.205(2)(b). The crime of murder by abuse

is elevated to aggravated murder when “[t]he homicide

occurred in the course of or as a result of intentional maim-

ing or torture of the victim.” ORS 163.095(1)(e)

First, defendant contends that the indictment fails

to state the crime of aggravated murder by abuse. Defendant

notes that, because Jeanette was 15 years old at the time

of her death, the state could not pursue a theory of aggra-

vated murder by abuse “of a child under 14 years of age.”

12

The state renews its argument that the scope of review limitations imposed

under ORS 138.050 and ORS 138.222 preclude this court’s ability to review

defendant’s challenge to the pretrial ruling on her demurrer to the indictment.

For the reasons explained above, we conclude that ORS 138.012(1) permits this

court to review defendant’s challenge.

Cite as 356 Or 432 (2014) 485

ORS 163.115(1)(c); ORS 163.095(1)(e). Second, defendant

contends that the state cannot pursue a theory of aggra-

vated murder by abuse of a dependent person, because, in

defendant’s view, the express reference to children “under 14

years of age” shows that the legislature intended to exclude

homicides of children between the ages of 15 and 18 years

of age qualifying as “dependent” based on age. Stated differ-

ently, defendant submits that the reference to “14 years of

age” would be superfluous if “dependent person” was meant

to include children dependent due to their age.

We reject defendant’s argument. Under ORS

163.115(1)(c), a child “under 14 years of age” and a person

who is dependent as a result of “either age or physical or

mental disability” are not mutually exclusive categories. A

victim who is dependent because of “age” is not limited to

a child 14 years old or younger. Additionally, a person may

be of any age and still qualify as a “dependent person” as a

result of a “physical or mental disability.” Thus, the statute

does not exclude from its purview crimes of murder by abuse

of children between the ages of 15 and 18 years of age.

III. CONCLUSION

We conclude that the trial court erred in denying

defendant’s motion to suppress with respect to certain state-

ments made by defendant to investigators after she invoked

her right to remain silent. However, we also conclude that

the admission of those statements during the penalty phase

constituted harmless error. We affirm the trial court’s rul-

ings in all other respects. Accordingly, we affirm defendant’s

conviction and her death sentence.

The judgment of conviction and sentence of death

are affirmed.