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.