S057820, Opinion — State v. Moore/Coen

2 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

Argued and submitted May 7, at Portland State University, Portland, Oregon, in
State v. Moore, S057820, decision of Court of Appeals affirmed; judgment of circuit
court reversed, and case remanded to circuit court for further proceedings ;* in
State v. Coen, S058145/S058152, decision of Court of Appeals affirmed; judgment of
circuit court affirmed in part and reversed in part, and case remanded to circuit
court for further proceedings ** December 16, 2010

STATE OF OREGON,
Petitioner on Review,
v.

DOUGLAS CARL MOORE,
aka Dc Moore, aka Douglas Earl Moore,
Respondent on Review.
(CC CF050356; CA A134343; SC S057820)

STATE OF OREGON,
Petitioner on Review,
v.
EDWIN SHANE COEN,
Respondent on Review.
(CC 020774FE; CA A135115; SC S058145, S058152)
(Consolidated for argument and opinion)
245 P3d 101

<!-- PageBreak -->

<!-- PageHeader="State v. Moore/Coen" -->
<!-- PageBreak -->

<!-- PageHeader="Cite as 349 Or 371 (2010)" -->

CJS, Criminal Law § 1089.

# En Banc

On review from the Court of Appeals.

Matthew J. Lysne, Assistant Attorney General, Salem,
argued the cause for petitioner on review in both cases. With
him on the briefs were John R. Kroger, Attorney General,
Jerome Lidz, Solicitor General, David B. Thompson, and
Linda M. Wicks, Assistant Attorneys General.

<!-- PageBreak -->

<!-- PageHeader="State v. Moore/Coen" -->

Susan F. Drake, Deputy Public Defender, Office of Public
Defense Services, Salem, argued the cause for respondent on
review Douglas Carl Moore. With her on the brief was Peter
Gartlan, Chief Defender.

Jesse Wm. Barton, Salem, argued the cause and filed the
brief for respondent on review Edwin Shane Coen.

DE MUNIZ, C. J.

In State v. Moore, S057820, the decision of the Court of
Appeals is affirmed. The judgment of the circuit court is
reversed, and the case is remanded to the circuit court for fur-
ther proceedings .*

In State v. Coen, S058145/S058152, the decision of the
Court of Appeals is affirmed. The judgment of the circuit
court is affirmed in part and reversed in part, and the case is
remanded to the circuit court for further proceedings .**

\* Appeal from Umatilla County Circuit Court, Jan Wyers, Judge. 229 Or App
255, 211 P3d 344 (2009).

** Appeal from Jackson County Circuit Court, Patricia Crain, Judge. 231 Or
App 280, 220 P3d 423 (2009).

<!-- PageBreak -->

<!-- PageHeader="Cite as 349 Or 371 (2010)" -->
<!-- PageBreak -->

<!-- PageHeader="State v. Moore/Coen" -->

# DE MUNIZ, C. J.

In these two criminal cases, consolidated for pur-
poses of opinion, each defendant testified at his trial after the
trial court had erroneously admitted incriminating state-
ments that police officers had obtained from each defendant
in violation of Article I, section 12, of the Oregon Constitu-
tion.1 In State v. Moore, 229 Or App 255, 211 P3d 344 (2009),
the Court of Appeals concluded that it could not consider
defendant's trial testimony in determining whether the
admission of defendant's unlawfully obtained statement was
"harmless error." In State v. Coen, 231 Or App 280, 220 P3d
423 (2009) (Coen II), the Court of Appeals, citing Moore, con-
cluded that the state could not introduce defendant's prior
trial testimony during his retrial. We allowed the state's peti-
tions for review. For the reasons that follow, we affirm the
decisions of the Court of Appeals in both Moore and Coen II.
Both cases are remanded to the trial court for further
proceedings.

## I. FACTS AND PROCEDURAL BACKGROUND

### A. State v. Moore

In Moore, a state trooper had observed that defen-
dant was not wearing a seatbelt while driving this truck and
stopped him. During the stop, the trooper noticed ammuni-
tion on the dashboard and asked defendant if there were any
firearms in the truck. When defendant responded affirma-
tively, the trooper asked, "What do you have?" Defendant
replied, "Just my friend's gun in the back there." The trooper
then asked if it was a pistol or a rifle, and defendant replied
that it was a .22 rifle. When the trooper later asked defen-
dant for the rifle, defendant retrieved the weapon from
behind the front seat, and also showed the trooper a piece of
a disassembled rifle. Upon checking defendant's driving rec-
ord and criminal history, the trooper discovered that defen-
dant had a felony conviction. The trooper then handcuffed
defendant and locked him in the back of the patrol car. The
trooper informed defendant that he was being detained but
was not under arrest. Shortly afterward, while standing in

1 The relevant text of Article I, section 12, is set out below.

<!-- PageBreak -->

<!-- PageHeader="Cite as 349 Or 371 (2010)" -->

the open doorway of the patrol car, the trooper questioned
defendant about the rifle. Defendant stated that the rifle
belonged to a friend with whom he had been hunting, and
that the friend had left the rifle in the truck for safekeeping.
Defendant also stated that he knew he was not supposed to
have a gun and was going to take the rifle out of the truck,
but had forgotten to do so. Defendant subsequently was
charged with one count of felon in possession of a firearm,
ORS 166.270.

Before trial, defendant moved to suppress the state-
ments that he had made while in the patrol car, arguing that
he had either been under arrest or in compelling circum-
stances when he made them, and therefore the trooper
should have advised him of his Miranda rights before ques-
tioning him. The trial court denied defendant's motion. At
trial, defendant explained that his initial response to the
trooper was a reference to the disassembled rifle piece, and
that he did not know that his friend had left the functional
rifle in the truck until he had turned to retrieve the piece of
the disassembled rifle. In closing arguments, the prosecutor
asserted that defendant's explanation at trial was under-
mined by the statements that he had made while sitting in
the patrol car. Ultimately, a jury convicted defendant on one
count of felon in possession of a firearm.

Defendant appealed, assigning error to the trial
court's denial of his motion to suppress and argued that he
should have been advised of his Miranda rights before being
questioned. The state responded that Miranda warnings
were not required under those circumstances and, alterna-
tively, that any error was harmless. The Court of Appeals
concluded that the trial court should have suppressed the
statements that defendant had made in the patrol car
because defendant had been under "compelling circum-
stances," when the officer questioned him, requiring the offi-
cer to give defendant Miranda-like warnings before question-
ing. Moore, 229 Or App at 262. In reversing and remanding
for a new trial, the Court of Appeals concluded (1) that, under
State v. McGinnis, 335 Or 243, 64 P3d 1123 (2003), it could
not consider defendant's trial testimony to determine

<!-- PageBreak -->

<!-- PageHeader="State v. Moore/Coen" -->

whether the admission of defendant's statements was harm-
less error, and (2) that the erroneous admission of defen-
dant's pretrial statements had not been harmless error. Id. at
264-65.

We allowed the state's petition for review. On
review, the state does not dispute that defendant's pretrial
statements were obtained in violation of Article I, section 12.
Rather, the state argues that, under McGinnis, (1) excluding
a defendant's trial testimony from harmless error review is
appropriate only when a defendant's erroneously admitted
pretrial statement were "actually coerced," and (2) an appel-
late court must consider a defendant's trial testimony when
the state proves that erroneously admitted statements did
not compel defendant's trial testimony. Here, the state
asserts that defendant voluntarily made the erroneously
admitted statements; that is, they were not "actually
coerced." In addition, the state argues that the erroneous
admission of defendant's pretrial statements did not compel
defendant to testify at trial because, notwithstanding those
statements, defendant nevertheless needed to testify at trial
to explain other statements that he had made to the trooper
and that the trial court had properly admitted. The state also
requests that this court reexamine McGinnis and hold that,
when a defendant testifies voluntarily and admits the truth-
fulness of statements that the trial court erroneously admit-
ted at trial, the defendant's trial testimony may always be
used for harmless error review or for rebuttal on retrial.

### B. State v. Coen (Coen II)

In Coen, defendant was charged with second-degree
manslaughter and driving under the influence of intoxicants
(DUII) after a head-on automobile collision in which the
driver of one vehicle was killed and defendant, the driver of
the other vehicle, was hospitalized. At the accident scene, the
responding officer, Trooper Allison, noticed a "half rack" of
beer on the passenger side of defendant's vehicle and another
box of beer in the back seat. Allison went to the hospital to
question defendant. When he arrived, he spoke with a doctor
who stated that, in his opinion, defendant was intoxicated.
Allison entered defendant's hospital room and noticed that
defendant's eyes were bloodshot, watery, and droopy, and

<!-- PageBreak -->

<!-- PageHeader="Cite as 349 Or 371 (2010)" -->

that his speech was slow. Without first giving defendant
Miranda warnings, Allison began to question him. Defen-
dant stated that he had had two or three beers a few hours
before the accident, but maintained that he was in his lane
when the accident occurred. Allison asked defendant if he
would give blood and urine samples. Defendant responded,
"If I had a couple beers and this is turning into a big deal, I
think that I should probably have an attorney, shouldn't I?"
Allison told defendant that he could call an attorney, but that
if defendant did so, he would be arrested. Allison explained,
"[T]here's actually two ways this is going to work, is, you can
give it by consent, or I can place you under arrest and then I
get it anyway." Defendant then asked, "If I had a lawyer here,
I'd be under arrest now?" Allison responded affirmatively.
Defendant did not call a lawyer and agreed to provide the
samples.

As the samples were being drawn, Allison continued
to question defendant. During that conversation, defendant
appeared to retreat from his earlier statement that he had
remained in his own lane, admitting that, "[The other driver]
was on that corner, I tapered the corner, and then 'bam!' " A
chemical analysis of defendant's blood and urine revealed a
blood alcohol content of .25 percent.

Before trial, defendant moved to suppress (1) the
statements that he had made to Allison at the hospital and
(2) the results of his blood and urine tests. The trial court
denied the motion. Defendant then testified at trial, admit-
ting that he was an alcoholic and that he had been drinking
before the accident. Specifically, defendant testified that he
had consumed 15 or 16 beers in the eight hours before the col-
lision, but that that was a "normal day." He testified that he
had a high tolerance for alcohol and was not under the influ-
ence of intoxicants at the time of the collision. Defendant fur-
ther testified that he had been in his lane and had not caused
the collision, stating that when he had told Allison that he
had "tapered the corner," he meant that he "[took] it low into
the corner," to reduce the outward pull on the truck, but
remained inside his lane. A jury convicted defendant on both
counts, and he appealed.

<!-- PageBreak -->

<!-- PageHeader="State v. Moore/Coen" -->

On appeal, the Court of Appeals concluded that,
when Allison told defendant that he would arrest him if he
insisted on contacting a lawyer, the circumstances became
compelling, and that Allison should have given defendant
Miranda warnings. The Court of Appeals also determined
that defendant's consent to give the blood and urine samples
was the product of an illegal threat by Allison and therefore
involuntary because, when he made the threat, Allison did
not have subjective probable cause to arrest defendant.2 Con-
sequently, the Court of Appeals concluded that the trial court
should have suppressed defendant's pretrial statements and
the results of the chemical analysis. The Court of Appeals
also concluded that those errors were not harmless; as a
result, it reversed defendant's convictions and remanded for
a new trial. State v. Coen, 203 Or App 92, 125 P3d 761 (2005),
rev den, 341 Or 141, 139 P3d 259 (2006) (Coen I).

On remand, both the state and defendant moved for
pretrial rulings on the admissibility of certain evidence. To
prove that defendant had acted with a reckless mental state,
the state offered evidence that defendant had participated in
a DUII diversion program based on a 1992 incident, and that
defendant had been convicted of DUII in 1997.3 Specifically,
the state sought to show that, at the time of the collision,
defendant knew the risks involved in driving under the influ-
ence of intoxicants. The trial court ruled that evidence of
defendant's participation in the diversion program was

2 After Coen I was decided, this court issued its opinion in State v. Machuca,
347 Or 644, 657, 227 P3d 729 (2010). In that case, this court held that, in certain
circumstances, "for purposes of the Oregon Constitution, the evanescent nature of
a suspect's blood alcohol content is an exigent circumstance that will ordinarily
permit a warrantless blood draw[.]" Neither party has raised the applicability of
that decision here, and we thus do not address it.

3 ORS 163.125(1) provides, in part:

"Criminal homicide constitutes manslaughter in the second degree when:

"(a) It is committed recklessly[.]"

In turn, ORS 161.085(9) provides:

" 'Recklessly,' when used with respect to a result or to a circumstance
described by a statute defining an offense, means that a person is aware of and
consciously disregards a substantial and unjustifiable risk that the result will
occur or that the circumstance exists. The risk must be of such nature and
degree that disregard thereof constitutes a gross deviation from the standard
of care that a reasonable person would observe in the situation."

<!-- PageBreak -->

<!-- PageHeader="Cite as 349 Or 371 (2010)" -->

admissible, but ordered that defendant's 1997 DUII convic-
tion be excluded. Defendant, on the other hand, sought to
suppress his testimony from the first trial, arguing that he
had testified only to rebut the illegally obtained statements
that he had made to Trooper Allison at the hospital, and
which the trial court had erroneously admitted into evidence
in his first trial. The trial court agreed and ordered that
defendant's trial testimony be excluded from the retrial, rea-
soning that "[i]t is clear that the defendant only testified in
order to counter the use of the illegally obtained blood draw
and his statements."

The state appealed. ORS 138.060(1)(c).4 The Court of
Appeals reversed in part and affirmed in part, concluding
that the trial court had erred in excluding defendant's DUII
conviction. However, the Court of Appeals affirmed the trial
court's order excluding defendant's trial testimony. The court
determined that evidence of defendant's past DUII conviction
was relevant to prove defendant's state of mind, rejecting
defendant's argument that OEC 404(4)-discussed post, at
386-91-is unconstitutional because it prevents a court from
excluding evidence that is unfairly prejudicial. Finally, the
Court of Appeals determined that the state's claim that the
trial court had erred in suppressing defendant's prior trial
testimony was foreclosed by the Court of Appeals' recent deci-
sion in Moore.

Defendant and the state both sought review of that
decision, and we allowed both petitions. On review, the state
asserts that the Court of Appeals incorrectly relied on this
court's decision in McGinnis to affirm the trial court's pretrial
order suppressing defendant's trial testimony. As in Moore,
the state agrees that defendant's pretrial statements to the
trooper were obtained in violation of Article I, section 12, but
asserts that those statements were not "actually coerced."
According to the state, because defendant's prior trial
testimony was not "induced" by the erroneous admission of

4 ORS 138.060(1)(c) provides:

"The state may take an appeal from the circuit court to the Court of
Appeals from:

******

"(c) An order made prior to trial suppressing evidence[.]"

<!-- PageBreak -->

<!-- PageHeader="State v. Moore/Coen" -->

"actually coerced" incriminating statements, that testimony
should be admissible on retrial. Defendant, in turn, asserts
that the trial court properly excluded evidence of his prior
DUII conviction, and that the Court of Appeals erroneously
decided that issue.

## II. DISCUSSION

On review, the state acknowledges that, in both of
these cases, the statements that defendants made to the
police officers were not preceded by Miranda warnings and
were obtained under compelling circumstances, in violation
of Article I, section 12, of the Oregon Constitution. However,
as explained above, the state argues that, unless erroneously
admitted pretrial statements were "actually coerced," Article
I, section 12, permits their use to establish "harmless error"
or as evidence of a defendant's guilt on retrial when made as
part of a defendant's trial testimony.5 Because the parties
devote the bulk of their briefing to this court's decision in
McGinnis, we begin there.

In McGinnis, the defendant was charged with sell-
ing marijuana to an undercover informant, Diemer. 335 Or at
245. During the transaction, Diemer had worn a hidden radio
transmitter, known as a body wire, and a police officer
recorded the conversation at a remote location. The trial
court admitted the recording into evidence over the defen-
dant's objection. After its admission, the defendant testified
in his own defense. Although he conceded that he had
engaged in a drug transaction with Diemer, the defendant
attempted to portray Diemer as the seller. The defendant tes-
tified at trial that Diemer had wanted to buy back some mari-
juana that he previously had sold to the defendant and that
the defendant had complied with Diemer's request. Id. at
246. A jury convicted defendant of unlawful delivery of a con-
trolled substance for consideration, former ORS 475.992
(2003), renumbered as ORS 472.840 (2005). Although the
Court of Appeals concluded that the body wire evidence
should have been suppressed, it nevertheless affirmed the
defendant's conviction, holding that, because the defendant

5 "Harmless error" requires consideration of a single question: whether there
was little likelihood that the particular error affected the verdict. State v. Davis,
336 Or 19, 32, 77 P3d 1111 (2003).

<!-- PageBreak -->

<!-- PageHeader="Cite as 349 Or 371 (2010)" -->

had testified that he had engaged in an illegal drug trans-
action, the body wire evidence was cumulative, rendering the
error, if any, harmless.

On review in this court, the defendant, relying on
Harrison v. United States, 392 US 219, 88 S Ct 2008, 20 L Ed
2d 1047 (1968), contended that the Court of Appeals had
erred in considering the defendant's trial testimony in hold-
ing that the defendant had not been harmed by the errone-
ously admitted body wire recording. The defendant argued
that this court should adopt a rule precluding consideration
of a defendant's trial testimony in a review for harmless error
when the defendant's testimony had been compelled to rebut
illegally admitted evidence.

In considering that argument, this court observed
that the improper use of a defendant's illegally obtained
statements implicates a defendant's testimonial rights and
concluded that

"[t]he rule of Harrison is limited to those circumstances in
which a defendant is compelled to testify at trial as a result
of the Fifth Amendment violation that occurs when an ille-
gally obtained confession is used against that defendant at
trial. Stated otherwise, a defendant cannot invoke the pro-
tection of the Harrison rule unless the evidence that the
defendant sought to rebut by taking the stand was an inad-
missible confession, not evidence of some other kind, even if
that evidence was obtained illegally."

McGinnis, 335 Or at 253 (emphasis in original). The court
then stated, "That said, the United States Supreme Court's
rule in Harrison does not preclude this court from fashioning
a different rule under Oregon constitutional or statutory law.
However, we are persuaded by the logic of that Court's rule."
Id. at 253.

This court went on to hold that the police had vio-
lated former ORS 133.724 because they had not obtained an
ex parte court order before using a body wire. The court deter-
mined that the violation of that statute required suppression
of the recording but nevertheless affirmed the defendant's
conviction after conducting a harmless error analysis. The
court held that the recorded statements "were not the prod-
uct of compulsion by law enforcement." Id. at 253. Because

<!-- PageBreak -->

<!-- PageHeader="State v. Moore/Coen" -->

the recorded statements were "not compelled in any way,"
and thus did not implicate the constitution, the court con-
cluded that there was "no reason to exclude defendant's
[trial] testimony from a review of the record for harmless
error." Id. at 254.

Here, although the Court of Appeals based both of its
decisions on McGinnis and, on review, the parties focus much
of their argument on that decision, McGinnis dealt with a
statutory violation, not a constitutional one.6 Moreover,
although McGinnis involved erroneously admitted incrimi-
nating statements, there was no question in that case that
the defendant's wire-recorded statements were voluntarily
made. Thus, although McGinnis concluded that the rule
fashioned by the United States Supreme Court in Harrison
was appropriate for "Oregon constitutional [and] statutory
law," that conclusion was broader than the issue actually
before the court. In fact, McGinnis's holding does not directly
address the constitutional question presented in these cases.
To answer that question, we must again examine the nature
of the Article I, section 12, right against compelled self-
incrimination and our case law interpreting that provision.

Article I, section 12, provides, in part, that "[n]o per-
son shall * * * be compelled in any criminal prosecution to
testify against himself." In Oregon, Article I, section 12, is an
independent source for warnings similar to those required
under the Fifth Amendment to the United States Constitu-
tion by Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16
L Ed 2d 694 (1966). See State v. Magee, 304 Or 261, 266, 744
P2d 250 (1987) (so stating). Under Article I, section 12, the
police must give a defendant who is in custody Miranda-like
warnings prior to questioning. Id. In addition, Miranda-like
warnings also are required in circumstances that, although
they do not rise to the level of full custody, nevertheless cre-
ate a "setting which judges would and officers should recog-
nize to be 'compelling.'" State v. Smith, 310 Or 1, 7, 791 P2d
836 (1990) (quoting Magee, 304 Or at 265).

6 ORS 136.432, which did not apply when the defendant in McGinnis was con-
victed, now provides that a court may not exclude otherwise admissible evidence
solely on the ground that the evidence was obtained in violation of a statute.

<!-- PageBreak -->

<!-- PageHeader="Cite as 349 Or 371 (2010)" -->

When police officers obtain pretrial statements from
a defendant in violation of Article I, section 12, this court has
held that such statements must be excluded at trial in order
to restore the defendant to the position that he or she would
have been in if police had not violated that constitutional
right. See State v. Simonson, 319 Or 510, 518-19, 878 P2d 409
(1994) (adopting rationale from State v. Davis, 313 Or 246,
834 P2d 1008 (1992)).

Recently, in State v. Vondehn, 348 Or 462, 474, 236
P3d 691 (2010), this court observed that:

"Article I, section 12, affords a constitutional right to
remain silent. That right is, however, subject to waiver.
Because a custodial interrogation is inherently compelling,
and to ensure the validity of a waiver of the right against
self-incrimination, Article I, section 12, requires that the
police inform a person subjected to custodial interrogation
that he or she has a right to remain silent and to consult
with counsel and that any statements that the person
makes may be used against the person in a criminal prose-
cution. Article I, section 12, requires those Miranda warn-
ings to ensure that a person's waiver is knowing as well as
voluntary. If the police conduct a custodial interrogation
without first obtaining a knowing and voluntary waiver of
the suspect's rights, then they violate the suspect's Article
I, section 12, rights. To give effect to those constitutional
rights, the state is precluded from using, in a criminal pros-
ecution, statements made in response to the interrogation."

The state agrees that it is appropriate to exclude a defen-
dant's trial testimony on retrial or harmless error review
when that testimony was compelled by the erroneous admis-
sion of what the state refers to as "actually coerced" pretrial
statements.7 However, as noted above, the state argues that,

7 In its brief, the state describes the Harrison rule as requiring a court to con-
clude that a defendant's trial testimony was "compelled" by the erroneous admis-
sion of the unconstitutionally obtained statement. However, in Harrison, the Court
used the words "induced" or "impelled" to describe the connection necessary
between the erroneously admitted statements and a defendant's trial testimony:
"Having 'released the spring' by using the petitioner's unlawfully obtained confes-
sion against him, the government must show that its illegal action did not induce
his testimony." 392 US at 225 (emphasis added). As we shall explain, we do not find
it necessary to use the words "induced," "impelled," or "compelled" in describing the
rationale for excluding a defendant's trial testimony on retrial or from considera-
tion by an appellate court when reviewing for harmless error.

<!-- PageBreak -->

<!-- PageHeader="State v. Moore/Coen" -->

because in these two cases defendants' pretrial statements
here were not "actually coerced," their trial testimony is
admissible on retrial or available for harmless error review
by an appellate court.

Because the pretrial statements at issue in
McGinnis were not obtained in violation of the Oregon
Constitution, the court had no occasion to determine whether
the Harrison rule should be applied only when pretrial state-
ments are "actually coerced" as the state claims, or whether
the rule is applicable to the erroneous admission of any state-
ments obtained in violation of Article I, section 12. In
Vondehn, however, the state similarly argued that, although
it was proper to exclude physical evidence derived from state-
ments obtained by "actual coercion," the "mere failure to pro-
vide Miranda warnings" should not result in the exclusion of
physical evidence derived from such statements. This court
rejected the state's argument, holding that:

"It is the Oregon Constitution that requires Miranda warn-
ings and it is the Oregon Constitution that is violated when
those warnings are not given. When the police violate
Article I, section 12, whether that violation consists of
'actual coercion' or the failure to give the warnings neces-
sary to a knowing and voluntary waiver, the state is pre-
cluded from using evidence derived from that violation to
obtain a criminal conviction."

348 Or at 475-76. It follows that, in determining whether
exclusion of a defendant's trial testimony on retrial or from
harmless error review is warranted, no distinction should be
made under Article I, section 12, between statements uncon-
stitutionally obtained by "actual coercion" and statements
unconstitutionally obtained through police interrogation not
preceded by the constitutionally required warnings.

We observe, as did the court in Harrison, that, it is
"difficult to unravel the many considerations" that may lead
a defendant to testify at trial. 392 US at 224. Under our sys-
tem of criminal justice, there are a variety of ways for a defen-
dant to respond to erroneously admitted pretrial statements
without testifying in court about those statements. In the
usual case, a defendant decides whether to testify at trial
with the advice of counsel and is likely to consider a variety of

<!-- PageBreak -->

<!-- PageHeader="Cite as 349 Or 371 (2010)" -->

factors and circumstances, not just the state's intended use of
his or her pretrial statements. It is that reality that causes us
to reject the use of the terms compelled, induced, or impelled
in describing the connection between erroneously admitted
pretrial statements and a defendant's trial testimony that
justifies the suppression of a defendant's trial testimony.

Given the difficulty of "unravelling" all the factors
that may have contributed to a defendant's decision to testify
at trial-and because the state has gained an advantage over
a defendant at trial when it unconstitutionally obtains the
defendant's statements and then introduces them into evi-
dence-we conclude that it is more appropriate to assume
that a defendant's trial testimony is tainted by the errone-
ously admitted pretrial statements. Therefore, a defendant's
trial testimony must be excluded on retrial or from harmless
error review by an appellate court unless the court can deter-
mine from the record before it that a defendant's trial testi-
mony did not refute, explain, or qualify the erroneously
admitted pretrial statements.8 The standard we have identi-
fied using the terms, refute, explain, or qualify is intended to
be applied objectively, taking into account the substantive
content of such testimony under the totality of the circum-
stances of the case. With that understanding, we turn to the
state's arguments regarding defendants' testimony here.

### A. State v. Moore

In Moore, the state now concedes that the trial court
should have suppressed the incriminating statements that
defendant made to the trooper while he was handcuffed in
the patrol car. The state asserts, however, that admission of
those incriminating statements did not "compel" defendant
to testify. The state argues that a review of the record, includ-
ing defendant's testimony and defense counsel's opening and
closing statements, confirms that defendant would have tes-
tified regardless of whether his incriminating statements

8 Consistently with that observation, the rule we announce and apply in these
cases is confined solely to issues involving the erroneous admission of unconstitu-
tionally obtained pretrial statements. In McGinnis, this court observed that "the
rule of Harrison concerns the consequences of using a defendant's compelled state-
ments at trial, not the consequences of using any other illegally obtained evidence."
335 Or at 252.

<!-- PageBreak -->

<!-- PageHeader="State v. Moore/Coen" -->

were admitted at trial. The state argues that, given defen-
dant's position that his initial response to the trooper was a
reference to the disassembled rifle piece, and that he did not
know that the functioning rifle had been left in the truck
until he turned to retrieve the disassembled rifle piece, defen-
dant may have decided to testify about the statements to sug-
gest that they were the product of confusion or coercion. The
state asserts that defendant "absolutely needed to testify to
'explain away'" his admissible statement that his "friend's
gun" was in the truck. Defendant responds that the state is
engaging in speculation regarding what defendant would
have done if the trial court had not admitted the incriminat-
ing statements. Defendant asserts that it is just as likely
that, instead of testifying, he would have called his passenger
to testify about defendant's initial response to the trooper,
because the passenger was present during that exchange and
could testify concerning defendant's answers.

In his trial testimony, defendant essentially denied
that he knew that the functioning rifle was in the vehicle. In
so testifying, defendant did not in any way admit that his
pretrial statements were true. In this case, because defen-
dant's trial testimony in and of itself could not support a find-
ing of guilt, we need not determine whether defendant's tes-
timony refuted, explained, or qualified the erroneously
admitted pretrial statements. That is so because, even con-
sidering defendant's trial testimony as part of our review for
harmless error, it is obvious that the erroneously admitted
statements likely affected the verdict. See State v. Davis, 336
Or 19, 32, 77 P3d 1111 (2003) (Oregon's constitutional test for
affirmance despite error consists of a single inquiry: Is there
little likelihood that the particular error affected the ver-
dict?). We therefore conclude, albeit for different reasons,
that the Court of Appeals correctly reversed the trial court
judgment and remanded for a new trial.

### B. State v. Coen (Coen II)

In Coen II, the state does not argue that defendant's
decision to testify at trial was untainted by the erroneous
admission of his unconstitutionally obtained statements.9 We

9 We note that, on remand, the state did not offer the blood draw evidence at
issue on the first appeal and instead offered evidence of a separate "medical" blood

<!-- PageBreak -->

<!-- PageHeader="Cite as 349 Or 371 (2010)" -->

therefore conclude that the Court of Appeals properly
affirmed the trial court's suppression of defendant's previous
trial testimony for purposes of retrial.

### C. OEC 404(4)

We now address an issue raised only in Coen II and
which is an issue of first impression for this court. As noted
above, the state offered evidence that defendant had partici-
pated in a DUII diversion program for an incident that
occurred in 1992 and had later been convicted of DUII in
1997. According to the state, that evidence was admissible to
prove that defendant had acted with a reckless mental state
at the time of the collision, i.e., defendant knew of the risks
involved in driving under the influence of intoxicants. The
trial court admitted evidence of the diversion program, but
excluded evidence of the 1997 DUII conviction. The court con-
cluded that, "[a]lthough the conviction may be relevant, it is
clearly being offered to show defendant's bad character or
propensity[,] since the defendant's prior diversion is already
coming in for state of mind."

On appeal, the state asserted that OEC 404(4), set
out below, precluded the trial court from engaging in the bal-
ancing analysis provided by OEC 403.1º Defendant countered
that OEC 404(4) is facially unconstitutional because it limits
application of OEC 403 balancing in any way that benefits
only the prosecution. Defendant argued that OEC 404(4) is a
"one-sided" rule, and thus "violate[s] the federal constitu-
tional due process principle that rules of procedure generally
be equally available to the prosecution and to criminal defen-
dants." According to defendant, in order to comply with due
process, OEC 404(4) must be construed to allow OEC 403 bal-
ancing. The Court of Appeals rejected defendant's argu-
ments. Relying on its prior case law, the Court of Appeals

draw that the trial court concluded was admissible. The state makes no argument
in this court that the admission of either form of blood draw evidence is pertinent
to the resolution of the question now before us.

10 OEC 403 provides:

"Although relevant, evidence may be excluded if its probative value is sub-
stantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay or needless
presentation of cumulative evidence."

<!-- PageBreak -->

<!-- PageHeader="State v. Moore/Coen" -->

determined that evidence of a prior DUII conviction is rele-
vant to demonstrate a defendant's state of mind in a prose-
cution for vehicular manslaughter, and that OEC 404(4) does
not violate due process. Coen II, 231 Or App at 284-85.

On review, defendant again challenges the constitu-
tionality of OEC 404(4), raising both facial and "as applied"
challenges. Defendant argues that OEC 403 codifies a due
process principle that ensures that prosecutions are con-
ducted in a fundamentally fair manner. Defendant argues
that OEC 403 balancing serves as a "primary and necessary
component" in determining whether evidence may be admit-
ted without endangering a defendant's right to a fair trial.
According to defendant, because OEC 404(4) omits the use of
OEC 403 balancing in criminal prosecutions, OEC 404(4) vio-
lates the Due Process Clause of the Fourteenth Amendment
to the United States Constitution.

We begin our analysis with the text of the rule at
issue. OEC 404(4) provides, in part:

"In criminal actions, evidence of other crimes, wrongs or
acts by the defendant is admissible if relevant except as
otherwise provided by:

"(a) [OEC 406 to 412] and, to the extent required by
the United States Constitution or the Oregon Constitution,
[OEC 403];

"(c) The Oregon Constitution; and

"(d) The United States Constitution."

In determining whether a state rule violates due
process, the United States Supreme Court has stated that
the question is whether the rule "offends some principle of
justice so rooted in the traditions and conscience of our people
as to be ranked as fundamental." Patterson v. New York, 432
US 197, 201-02, 97 S Ct 2319, 53 L Ed 2d 281 (1977).
According to the Supreme Court, it is normally "within the
power of the State to regulate procedures under which its
laws are carried out, including the burden of producing evi-
dence and the burden of persuasion, and [the state's] decision
in this regard is not subject to proscription under the Due

<!-- PageBreak -->

<!-- PageHeader="Cite as 349 Or 371 (2010)" -->

Process Clause." Id. (internal quotation marks omitted). The
Supreme Court also has observed that, "[b]eyond the specific
guarantees enumerated in the Bill of Rights, the Due Process
Clause has limited operation. We, therefore, have defined the
category of infractions that violate 'fundamental fairness'
very narrowly." Dowling v. U.S., 493 US 342, 352, 110 S Ct
668, 107 L Ed 2d 708 (1990).

This court previously has stated that OEC 404(4)
"clearly qualifies as an evidentiary change in the law that
favors only the prosecution by making the conviction of a
defendant more likely." See State v. Shaw, 338 Or 586, 613,
113 P3d 898 (2005) (declining to apply OEC 404(4) on defen-
dant's appeal because to do so would violate ex post facto
clause of Oregon Constitution). That said, however, the text
of the rule undermines defendant's facial challenge. As
noted, OEC 404(4) provides that "[i]n criminal actions, evi-
dence of other crimes, wrongs or acts by the defendant is
admissible if relevant except as otherwise provided by" the
state or federal constitution or by some other statute. Thus,
under OEC 404(4), traditional standards of relevancy are
preserved, and in all events, no evidence may be admitted
that would violate state and federal constitutional standards.

Despite the constitutional protection expressed in
the text of the rule, defendant, relying primarily on Wardius
v. Oregon, 412 US 470, 472, 93 S Ct 2208, 37 L Ed 2d 82
(1973), argues that, to the extent that OEC 404(4) deprives a
defendant "of the same, full use of OEC 403 that the prose-
cution enjoys, it violates the due process principle requiring
that criminal defendants enjoy equal access to court proce-
dures that the prosecution enjoys."

In Wardius, the Supreme Court scrutinized an
Oregon statute that required a defendant to notify the pros-
ecution of any alibi defenses and witnesses. If the defendant
failed to do so, the defendant could not rely on that defense or
those alibi witnesses at trial. The statute did not contain any
requirement that the state provide reciprocal discovery to the
defendant of witnesses it planned to use to refute the alibi
defense. Id. The Court explained that it was "particularly
suspicious of state trial rules which provide nonreciprocal
benefits to the State when the lack of reciprocity interferes

<!-- PageBreak -->

<!-- PageHeader="State v. Moore/Coen" -->

with the defendant's ability to secure a fair trial." Id. at 475
n 6. The Court concluded that the statute impaired the defen-
dant's rights to a fair trial in violation of the Due Process
Clause, stating that "[i]t is fundamentally unfair to require a
defendant to divulge the details of his own case while at the
same time subjecting him to the hazard of surprise concern-
ing refutation of the very pieces of evidence which he dis-
closed to the State." Id. at 476.

In State v. Upton, 339 Or 673, 125 P3d 713 (2005),
this court rejected a Wardius-based argument that was sim-
ilar to the one defendant makes here:

"Wardius, however, does not require that every proce-
dure relating to both a defendant and the state ensure iden-
tical rights in order to satisfy due process. Rather, Wardius
addressed only a narrow procedural requirement that is not
at issue here. In Wardius, the Court held that a statute may
not require a defendant-who has no burden of proof at
trial-to disclose certain alibi witnesses, when the state
had no comparable obligation to disclose its witnesses. The
holding in Wardius, however, did not establish a constitu-
tional rule that a defendant and the state must be treated
identically in all respects."

Id. at 686-87 (internal citation omitted).

Here, although OEC 404(4) does not expressly pro-
vide a reciprocal benefit to a criminal defendant, a defendant
may nevertheless introduce evidence of other crimes or
wrongful acts-for example, by a victim, codefendant, or
other suspect-under OEC 404(3), which provides:

"Evidence of other crimes, wrongs or acts is not admis-
sible to prove the character of a person in order to show that
the person acted in conformity therewith. It may, however,
be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident."

See State v. Cox, 337 Or 477, 98 P3d 1103 (2004) (OEC 404(3)
did not preclude defendant from introducing evidence of
other crimes committed by victim to prove that defendant
reasonably believed that he needed to protect himself from
victim). Thus, the fact that the state may introduce evidence
of other crimes, wrongs, or acts by a defendant under OEC

<!-- PageBreak -->

<!-- PageHeader="Cite as 349 Or 371 (2010)" -->

404(4) does not prevent a defendant from presenting a com-
plete defense, as did the statute under consideration in
Wardius.

Finally, as we understand defendant's "as applied"
challenge,11 he argues that OEC 404(4) is fundamentally
unfair because juries may use the evidence admitted under
OEC 404(4) as evidence of the defendant's bad character and
"return a vengeful verdict." However, in Spencer v. Texas,
385 US 554, 87 S Ct 648, 17 L Ed 2d 606 (1967), the Supreme
Court rejected a similar due process challenge to a Texas
habitual criminal statute after the trial court permitted the
introduction of evidence concerning defendant's convictions
for the same or a similar offense and provided a limiting
instruction to the jury that it was to consider the other bad
acts for noncharacter purpose only. In so holding, the Court
observed that, even though such evidence is generally recog-
nized at common law to create a potential for prejudice, that
possibility is outweighed for purposes of due process where
the evidence is particularly probative of another fact in issue,
such as an element of a crime. Id. at 561-63.

Here, the state offered the DUII evidence to prove
that defendant had acted with a reckless mental state, an ele-
ment of second-degree manslaughter, for which the state had
the burden of proof. Without question, that evidence is rele-
vant for the purpose for which the state intends to offer it.
And it is well settled in this state that trial courts have the
authority to give limiting instructions to juries that require
them to consider evidence only for a particular purpose or in
regard to a particular element, and we have long presumed
that juries follow those instructions. See State v. Thompson,
328 Or 248, 271, 971 P2d 879, cert den, 527 US 1042, 119 S Ct
2407, 144 L Ed 2d 805 (1999) (jurors are presumed to follow a

11 We describe this aspect of defendant's constitutional challenge as an "as
applied" challenge because, in ordering defendant's DUII conviction excluded, the
trial court concluded that, "[a]lthough the conviction may be relevant, it is clearly
being offered to show defendant's bad character or propensity since defendant's
prior diversion is already coming in for state of mind." In doing so, the trial court
necessarily considered the nature of the evidence offered by the state and engaged
in an analysis specific to the case in concluding that the admission of the evidence
would violate the constitution.

<!-- PageBreak -->

<!-- PageHeader="State v. Moore/Coen" -->

trial court's instructions). To the extent the trial court con-
cluded that admission of the evidence would violate the state
or federal constitution, it erred.12 Based on the foregoing, we
reject defendant's final constitutional claim. The Court of
Appeals correctly reversed the trial court's ruling excluding
evidence of defendant's prior DUII conviction.

In State v. Moore, S057820, the decision of the Court
of Appeals is affirmed. The judgment of the circuit court is
reversed, and the case is remanded to the circuit court for fur-
ther proceedings.

In State v. Coen, S058145/S058152, the decision of
the Court of Appeals is affirmed. The judgment of the circuit
court is affirmed in part and reversed in part, and the case is
remanded to the circuit court for further proceedings.

12 We do not hold that the trial court erred in considering defendant's argu-
ment that admission of the DUII conviction was unfairly prejudicial to the degree
that its admission would violate the state and federal constitutions. Rather, we
hold that the trial court erred in concluding that the evidence would be unfairly
prejudicial and therefore violate the due process clause of the federal constitution.