State v. Jones, A160930 (Control)

• Court: Court of Appeals of Oregon
• Writing for the Court: HADLOCK, J.
• Citation: 296 Or.App. 553,439 P.3d 485
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Bethanie Joanne JONES, Defendant-Appellant.
• Decision Date: 20 March 2019
• Docket Number: A160930 (Control),A160931

296 Or.App. 553
439 P.3d 485

STATE of Oregon, Plaintiff-Respondent,
v.
Bethanie Joanne JONES, Defendant-Appellant.

A160930 (Control)
A160931

Court of Appeals of Oregon.

Argued and submitted May 30, 2017.
March 20, 2019

Jesse Wm. Barton, Salem, argued the cause and filed the brief for appellant.

Jennifer S. Lloyd, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General.

Before DeHoog, Presiding Judge, and Hadlock, Judge, and Powers, Judge.^*

HADLOCK, J.

439 P.3d 487

296 Or.App. 555

After an evening that involved heavy drinking and arguments, defendant shot her husband, J, in the leg. All four of defendant’s children were present. A jury convicted defendant of first-degree assault and four counts of reckless endangerment, and she appeals, raising three assignments of error. Defendant first challenges the trial court’s denial of her motion to suppress statements that she made in response to questions that police officers asked before they read her Miranda warnings. Second, defendant makes unpreserved challenges to what she characterizes as comment on her "invocation of her rights to counsel, and on her exercise of her rights to remain silent." Third, defendant challenges the trial court’s exclusion of expert testimony that she offered in support of her self-defense theory; the excluded evidence related to a "danger assessment" regarding the threat that J may have posed to defendant before she shot him.

For the reasons set forth below, we reject defendant’s first assignment of error on the grounds that admission of her un-Mirandized statements did not violate the Fifth Amendment to the United States Constitution and that, even if the trial court erred in admitting those statements because they were obtained in violation of defendant’s rights under Article I, section 12, of the Oregon Constitution, any such error was harmless. We reject without further discussion the unpreserved arguments that defendant makes in association with her second assignment of error, including her suggestion that we should overlook certain evidence admitted without objection when we conduct our harmless-error analysis on the first assignment of error. Finally, we conclude that the trial court did not err in excluding defendant’s "danger assessment" evidence. Accordingly, we affirm.

I. THE TRIAL

In considering whether a trial court erred in denying a motion to suppress, we review the ruling for legal error.

296 Or.App. 556

State v. Krause , 281 Or. App. 143, 145, 383 P.3d 307 (2016), rev. den. , 360 Or. 752 (2017). In conducting that review, we ordinarily would be bound by the trial court’s implicit and explicit factual findings so long as the record supported them, id ., and therefore would describe the evidence in the light favoring the court’s ruling. Here, however, we ultimately conclude that any Article I, section 12, error associated with denial of defendant’s suppression motion was harmless. A harmless error analysis is based on reviewing "all pertinent portions of the record" to determine "if there is little likelihood that [any] error affected the verdict." State v. Wirkkala , 290 Or. App. 263, 271, 414 P.3d 421 (2018) (internal quotation marks omitted); see State v. Simon , 294 Or. App. 840, 849, 433 P.3d 385 (2018) (similar). We therefore describe the evidence in accordance with that standard.

A. Evidence Not Challenged on Appeal

We begin by reviewing the pertinent evidence that was introduced at trial, not including the evidence that was the subject of defendant’s suppression motion, which we describe later in the opinion. Because the trial spanned five days and the transcript is lengthy, our description of the relevant facts necessarily summarizes and characterizes certain evidence instead of setting it out in detail.

At trial, there was no dispute that defendant shot J in the leg after they argued and that the shooting occurred in the couple’s home, where four children, ages 13, 12, 8, and just under 2, were present. The three older children are defendant’s from a previous marriage; J is the father of the youngest child. The state’s theory, as described in its

439 P.3d 488

opening statement, was that defendant intentionally shot J in the leg in anger following an argument, and that she also fired other shots inside the house. The shot that struck J shattered his femur, requiring surgery. Defendant’s theory was that she acted in self-defense, shooting J only after he physically attacked her and one of the children.

J was the state’s first witness at trial. He described a party at the couple’s house that involved heavy drinking and that, after their guests left, led to him and defendant arguing—a type of circumstance that often resulted in him

296 Or.App. 557

packing up and leaving the house.¹ J testified that, on this occasion, he told defendant that he was going to take his child and leave. J could not find his keys, however, and he thought that defendant had taken them. J and defendant continued arguing; J acknowledged that he was angry and that he called defendant names.

J testified that, as he looked through desk drawers for his keys, defendant told him that "she should have shot [him] a long time ago in the foot like she always said she was going to do" if he left her or cheated on her. Defendant said to J, "you think I won’t shoot you," he responded that defendant would not shoot anybody, and they went back and forth that way several times. J testified that defendant then shot him and he fell, saying "bitch you shot me." Defendant responded, "you’re god damn right" and asserted that she should have done it a long time ago. Yelling continued, and according to J, defendant then fired three additional shots.

Sometime after defendant shot him, J asked defendant to call an ambulance, but she did not. Instead, defendant pulled J’s pants off, got peroxide, and called her mother (who is a nurse) to seek advice. Defendant went upstairs at one point and J reached a cell phone and dialed 9-1-1. Defendant came back down the stairs and, J testified, he threw the phone (which ended up connecting with 9-1-1) somewhere around the chair or the couch. Later, J heard defendant speaking to a 9-1-1 operator on another telephone, but he did not yell because he saw lights outside indicating that police officers had already arrived. Defendant put the gun on the desk. Police officers called over a loudspeaker for everybody to come outside, and officers eventually entered the house.

At trial, J denied that he had ever hit or head-butted defendant. He denied having thrown defendant to

296 Or.App. 558

the ground on the night she shot him; he also denied ever having thrown any of the children to the ground.

The jury heard a recording of the "open line" call to 9-1-1 that J initiated shortly after he was shot, when he placed the call and then threw the phone by a couch or chair (before officers were dispatched):

"DISPATCHER: 911 emergency.

"[J]: How the fuck am I going to take my pants off? And you fucking shot me in the leg.

"DISPATCHER: Hello?

"* * * * *

"THE DEFENDANT: I shot you. Turn over on your back.

"[J]: I’m fucking trying.

"DISPATCHER: What’s the address there?

"[J]: Ow! Stop please. * * * You fucking shot me.

"THE DEFENDANT: Damn right I fucking shot you for good reason too.

"* * * * *

"THE DEFENDANT: (Indiscernable) call any cops. I am not going to fucking go to jail. (Indiscernable). Fuck that.

"[J]: Well why’d you shoot me then?

"THE DEFENDANT: Because you deserve it. Now roll the fuck over. (Indiscernable).

"[J]: I’m trying."

The recording continues with defendant encouraging J to roll over and remove his pants and J exclaiming in pain. Defendant then says more about why she shot J:

439 P.3d 489

"THE DEFENDANT: (Indiscernable). I would have shot you in the foot (indiscernable).

"[J]: Ow!

"THE DEFENDANT: I fucking love you. It’s a crazy love (indiscernable).

"[J]: Ow!

"THE DEFENDANT: If I didn’t love you, I wouldn’t have done it."

296 Or.App. 559

The 9-1-1 dispatcher was able to connect that "open line" call with an address for defendant and called another associated telephone number, apparently without getting an answer. However, about 20 minutes after the open-line call had come in, defendant called back to dispatch. The dispatcher asked defendant what was going on at the house and defendant responded, "Nothing that I’m aware of." The dispatcher told defendant that 9-1-1 had received a call from another of the phones associated with that address, and defendant suggested that her baby might have hit the emergency-call dial on that phone.² At that point, police arrived.

Trooper McClendon is one of the officers who responded. McClendon asked dispatch to tell defendant to come out of the house with her hands up and nothing...