inline"> 739 Argued and submitted August 23, affirmed November 27, 2019 STATE OF OREGON, Plaintiff-Respondent, v. JAMES HAROLD FORSHEE, III, aka James Harold Forshee, II, Defendant-Appellant. Klamath County Circuit Court 1400813CR; A166497 455 P3d 1025


    Defendant appeals a judgment of conviction for murder. Defendant assigns
error to the trial court’s denial of his motion to suppress his statement, “I shot
the guy,” which was made in response to an officer’s question about defendant’s
involvement in the shooting before defendant was read his Miranda warnings.
Defendant contends that that statement was obtained in violation of his rights
under Article I, section 12, of the Oregon Constitution and the Fifth Amendment
to the United States Constitution. Held: Even if the trial court erred in admitting defendant’s statement because it was obtained in violation of defendant’s
rights under Article I, section 12, any such error was harmless. Furthermore,
defendant’s statement was not obtained in violation of his Fifth Amendment
rights, because the officer’s question fell within the public safety exception to
the Miranda warning requirement, as articulated by the United States Supreme
Court in New York v. Quarles,

(1984).
Affirmed.

Dan Bunch, Judge.
Laura A. Frikert, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Michael Casper, Assistant Attorney General, argued the
cause for respondent. On the briefs were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General, and
E. Nani Apo, Assistant Attorney General.
Before Armstrong, Presiding Judge, and Tookey, Judge, and
Aoyagi, Judge.
TOOKEY, J.
Affirmed.
740 State v. Forshee

TOOKEY, J.
Defendant was charged with one count of murder
and he asserted the affirmative defense of extreme emotional disturbance at trial. The jury was not persuaded
by that defense, and it found defendant guilty of murder.
Defendant appeals the judgment of conviction for murder,
ORS 163.115,1 assigning error to the trial court’s denial of
his motion to suppress his statement, “I shot the guy,” which
was made in response to an officer’s question about defendant’s involvement in the shooting before defendant was
read his Miranda warnings.
For the reasons set forth below, we conclude that,
even if the trial court erred in admitting that statement
because it was obtained in violation of defendant’s rights
under Article I, section 12, of the Oregon Constitution,
any such error was harmless. We also conclude that that
statement was not obtained in violation of defendant’s
rights under the Fifth Amendment to the United States
Constitution, because the officer’s question fell within the
public safety exception to the Miranda warning requirement, as articulated by the United States Supreme Court in
New York v. Quarles,

467 US 649

104 S Ct 2626

81 L Ed 2d 550

 (1984). Accordingly, we affirm.2
    1
      ORS 163.115 was amended in 2015 and again in 2019. Or Laws 2015,
ch 820, § 46; Or Laws 2019, ch 635, § 4. However, those amendments do not apply
to this case. Or Laws 2015, ch 820, § 51; Or Laws 2019, ch 635, § 30. Accordingly,
we apply the 2013 version of the statute, which was in effect when defendant
committed the murder in 2014.
    2
      Defendant also assigns error to the trial court’s denial of his motion for a
continuance on the morning of trial. We reject that assignment of error without
discussion.
     Furthermore, in a supplemental assignment of error, defendant contends that
“[t]he trial court erred in instructing the jury that it could reach a nonunanimous
verdict on the charge of murder,” because “Article I, section 11, of the Oregon
Constitution requires jury unanimity as to a murder charge,” and because “[t]he
Sixth and Fourteenth Amendments [to the United States Constitution] require
unanimous verdicts.” We reject defendant’s federal constitutional arguments, on
the merits, without further discussion. Defendant is correct that, under Article I,
section 11, “unanimity [i]s required for the jury to convict defendant of murder.”
State v. Lomax,

288 Or App 253

, 261,

406 P3d 94

 (2017). Under the circumstances
of this case, however, we conclude that the instructional error was harmless.
Despite the trial court’s instruction that the jury could reach a nonunanimous
verdict for murder, the jury returned a unanimous guilty verdict. Moreover,
defendant did not dispute that he shot and killed the victim and we find nothing
in the record that indicates that the jury would have rendered a nonunanimous
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300 Or App 739

 (2019)                                                  741

                             I. BACKGROUND
         Because we ultimately conclude that any error in
admitting defendant’s statement under Article I, section 12,
was harmless, we review “all pertinent portions of the
record to determine if there is little likelihood that any error
affected the verdict.” State v. Jones,

296 Or App 553, 556

439 P3d 485

 (2019) (internal quotation marks and brackets
omitted). With respect to defendant’s Fifth Amendment
claim, “[w]e review the denial of a motion to suppress for
legal error, and we are bound by the trial court’s implicit
and explicit factual findings of historical fact as long as
the record [of the suppression hearing] includes constitutionally sufficient evidence to support those findings.” State
v. Walker,

277 Or App 397, 398

372 P3d 540

, rev den,

360 Or 423

 (2016). We state the facts 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.” Jones,

296 Or App at 556

.
Because the trial spanned multiple days and the transcript
is lengthy, our description of the historical facts necessarily summarizes certain evidence instead of setting it out in
detail.
         The victim had been defendant’s immediate supervisor for about two years, and defendant felt that the victim had singled him out for discipline on multiple occasions.
On April 10, 2014, the victim had “written up” defendant
at work for a forklift violation, and defendant became concerned that he would be fired as a result. Defendant stated
that he “snapped” when he got the write up and thought
to himself, “I’ve got to stop this guy” by “shoot[ing] him.”
Although defendant was “very upset” about the write up,
defendant was not “exhibiting signs of extreme distress,”

verdict had it been instructed that its verdict must be unanimous. Hence, the
asserted error does not supply a basis for us to reverse the judgment. 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 verdict?”).
742                                            State v. Forshee

and he was able to “control himself,” take time off of work,
and go home.
          Defendant also stated that, after the write up,
defendant began to think about killing the victim “every
second of the day,” and he began planning out the shooting.
Defendant had previously told several of his coworkers that
he was “going to use prison as [his] retirement.” Ultimately,
defendant decided to kill the victim because defendant was
“60 years old, had no family or kids, and [because the victim] * * * had to be stopped.”
        That afternoon, defendant’s coworker and union
representative, Freitag, called defendant. Defendant was
“very upset” and Freitag let defendant know that he did not
think defendant would be fired for the forklift violation and
that “the worst that he would get would be probation.” Later
that afternoon, Freitag called defendant again and Freitag
thought that it sounded like defendant had “calmed down;”
defendant had a conversation with Freitag about asparagus
being on sale at the grocery store.
         About one week before the murder, defendant also
spoke with his brother. Defendant complained about work,
but nothing that defendant said gave his brother any concern or made him believe that defendant “was having a mental issue” that would require any help. Defendant’s brother
described it as a “normal conversation” and stated that he
“never * * * thought” that defendant would kill the victim.
          On April 13, defendant reserved a taxi cab to take
him to work on April 17, because he “intended to kill [the
victim]” that day, and defendant repeatedly called the taxi
company “every day [before the shooting] just to confirm
that his reservation was still good and that a cab would be
there to pick him up when he had requested.” Defendant’s
truck was operational, but defendant explained that he
reserved a cab because he did not “want to leave [his] pickup
truck in the lot [at work] if * * * [he] shot [the victim] and got
arrested.” Defendant also had two chihuahuas that “meant
a lot to [him],” and he decided to get rid of the dogs a “couple
days” before the shooting. Defendant stated that he got rid
of his dogs “because there was no one going to be there to
take care of them” after he shot the victim.
Cite as

300 Or App 739

(2019) 743

The day before the murder, defendant spoke with
his neighbor, who had known defendant for two-and-one-half
years. Defendant and his neighbor talked about defendant’s
boss giving him a hard time about the forklift violation
and defendant being written up. Nothing made defendant’s
neighbor concerned that defendant was planning to do something as drastic as murdering the victim, because defendant
did not seem like he was “having some kind of crisis” or
otherwise needed any help.
On April 17, the morning of the murder, defendant
selected a .45 caliber pistol from his gun collection because
it was concealable, loaded it with a full magazine of bullets
that are “meant to open and expand upon impact,” chambered a round, loaded a second magazine, and concealed the
pistol in his vest pocket.
Defendant also decided to put in earplugs before he
left his home, because he did not want to ruin his hearing
when he shot the victim. In the meantime, the taxi cab was
having trouble finding defendant’s home and had to call
defendant for directions. Defendant was “pleasant” when
the cab driver called, and defendant was able to give the
cab driver accurate directions to defendant’s home. When
the taxi arrived, defendant was already outside, and defendant got inside of the taxi and gave the driver directions to
defendant’s work place. On the way to work, defendant realized that he had forgotten his lunch at home, but he decided
that he did not need to return home to get it. Although
defendant was “pretty quiet,” defendant did not appear
“disheveled,” and the taxi driver described it as “a normal
fare.”
Defendant arrived at work in the taxi and entered
the building where four of his coworkers and the victim were
present. Defendant sat down next to one of his coworkers,
Smith. Smith said good morning to defendant, and defendant “looked up * * * [with] a half smile” and nodded at
Smith. Another coworker, Dotson, asked defendant about
his dogs, and defendant shook his head and pointed towards
the victim’s office. Dotson told defendant that the victim
was in his office, and defendant walked over to the victim’s
doorway.
744 State v. Forshee

At that point, defendant stepped inside of the victim’s office, pulled out his gun, and shot the victim three
times in the upper right chest, four times in the head, once
in the left shoulder, and once in the left hand.
After defendant fired the first two shots, Smith ran
out of the building and called 9-1-1. Defendant then fired
five more rounds, paused, stepped back, and said, “Fuck
that motherfucker.” Defendant then took the gun “back off
safety” and shot the victim two more times. Dotson saw
defendant pull an earplug out of his ear and put his gun
away, and then Dotson ran out of the building and called
9-1-1.
The only coworker to remain in the building, Krass,
called 9-1-1 while defendant sat down at a desk, folded up his
jacket, and set the gun and the clip down on top of it. Krass
said that defendant was “cool and calm” after the shooting,
and, when Krass mistakenly told the 9-1-1 operator that the
shooting occurred in building number two, defendant corrected Krass and informed him that the shooting occurred
in building number four.
When the police started to arrive, defendant got up
and said, “it’s time to go meet the police.” Defendant thought
that the victim “deserved to die” and that “the killing that
day seemed rational.”
Officer Benson received a call from dispatch about
a possible homicide and headed to the scene of the shooting. Dispatch informed Benson that the shooter and the gun
were still at the scene. Benson was the first officer on the
scene and, when Benson pulled up to building number four,
he saw defendant standing in the parking lot with his hands
up. Benson was unsure what defendant’s involvement was
in the shooting. Benson ordered defendant to turn around,
walk backwards, and then lie down on the ground with his
arms out and his feet crossed. Benson handcuffed defendant, and asked defendant, “what is your involvement here?”
Defendant’s answer to that question, “I shot the guy,” was
the subject of his suppression argument, which we describe
in more detail below. Benson did not ask defendant any further questions, helped defendant to his feet, and transferred
Cite as

300 Or App 739

 (2019)                            745

custody of defendant to another officer, Loudermilk. Benson
described defendant’s demeanor as “cooperative,” “calm[,]
and collected,” and Benson did not observe anything that
made him think that defendant was having an emotional or
mental health crisis.
         After learning from Benson that defendant was the
shooter, Loudermilk escorted defendant to his patrol car,
placed defendant in the back seat, and advised defendant
of his Miranda rights. Defendant stated that he understood
his rights and, when Loudermilk asked defendant what
had happened, defendant said, “This guy has been harassing me and trying to destroy my life and the lives of half
the people here; I just had all I could take.” At that point,
Loudermilk transferred defendant to the police department
and detained defendant in an interview room. Loudermilk
described defendant’s demeanor as “calm and matter-offact,” and Loudermilk did not observe any signs of intoxication or mental health issues.
         Lieutenant Daniel was at the police department
when Loudermilk arrived with defendant. Daniel assisted
Loudermilk in opening the interview room and stood by
while Loudermilk got defendant situated and removed his
handcuffs. Daniel stated that defendant “was very compliant,” that “nothing * * * stood out about his demeanor,” and
that he did not see any signs of defendant “suffering from an
extreme emotional issue.”
         Detective Gourley arrived at the police station
shortly thereafter to photograph defendant, seize defendant’s clothes, and obtain a sample of defendant’s DNA.
Gourley stated that defendant was “very calm” and “cooperative,” and Gourley did not see any signs that defendant
was under the influence of an extreme emotional disturbance. Detective Foreman also interacted with defendant at
the police station. Foreman likewise described defendant’s
demeanor as “very calm” and “casual,” and Foreman did not
observe any signs that defendant “was suffering from some
extreme emotional disturbance.” Detective Miller also had
the opportunity to observe defendant at the police station.
Miller also did not observe anything that made him feel like
defendant was having an “emotional crisis.”
746                                                         State v. Forshee

B.    Evidence of Defendant’s Statement Admitted Over His
      Objection
         Defendant was charged with one count of murder,
and, before trial, defendant filed a notice of intent to rely on
the affirmative defense of “extreme emotional disturbance,”
(EED) ORS 163.115(1)(a), ORS 163.118, and ORS 163.135.3
For its part, the state filed a motion for a Jackson/Denno
hearing “to determine the admissibility of [the] statement[ ]
made by defendant to law enforcement.” 4
         The defendant made the responsive statement at
issue after being held at gunpoint, placed in handcuffs, and
asked, “what’s your involvement here?” The state conceded
that defendant was in custody when he made the responsive statement to Benson, “I shot the guy,” and had not yet
been read Miranda warnings. Nonetheless, the state argued
that Benson’s question fell under the Quarles,

467 US 649

,
“public safety” exception to the Miranda warning requirement under the Fifth Amendment to the United States
Constitution, because Benson was arriving on a “scene that
has multiple people where somebody has already been shot,”
     3
       ORS 163.115(1)(a) (2013) provided, in part, that, “[e]xcept as provided in
ORS 163.118[,] * * * criminal homicide constitutes murder” when “it is committed intentionally, except that it is an affirmative defense that, at the time of
the homicide, the defendant was under the influence of an extreme emotional
disturbance.” ORS 163.118(1)(b) (2013) provided that “[c]riminal homicide constitutes manslaughter in the first degree” when “[i]t is committed intentionally by
a defendant under the influence of extreme emotional disturbance as provided in
ORS 163.135, which constitutes a mitigating circumstance reducing the homicide
that would otherwise be murder to manslaughter in the first degree and need not
be proved in any prosecution.” ORS 163.135(1) (2013) provided:
     “It is an affirmative defense to murder for purposes of ORS 163.115(1)(a) that
     the homicide was committed under the influence of extreme emotional disturbance if the disturbance is not the result of the person’s own intentional,
     knowing, reckless or criminally negligent act and if there is a reasonable
     explanation for the disturbance. The reasonableness of the explanation for
     the disturbance must be determined from the standpoint of an ordinary person in the actor’s situation under the circumstances that the actor reasonably
     believed them to be. Extreme emotional disturbance does not constitute a
     defense to a prosecution for, or preclude a conviction of, manslaughter in the
     first degree or any other crime.”
     4
       See Jackson v. Denno,

378 US 368, 376-77

84 S Ct 1774

12 L Ed 2d 908

(1964) (when the state seeks to admit statements that a defendant made to police
officers, the defendant has a constitutional right “to have a fair hearing and a
reliable determination on the issue of voluntariness” under the Due Process
Clause of the Fourteenth Amendment).
Cite as

300 Or App 739

 (2019)                                   747

and because Benson did not know who the shooter was, only
that the shooter and the firearm were still “on the scene
somewhere.” Furthermore, the state acknowledged that
“Oregon has not ruled * * * on whether a public safety or rescue doctrine exists under” Article I, section 12, of the Oregon
Constitution, but it urged the trial court to recognize such
an exception under state law and to apply the framework
articulated by the United States Supreme Court in Quarles.
Defendant disagreed, arguing that the “statement should be
suppressed because it’s clearly [a] custodial statement without Miranda warnings.”
        The trial court agreed with the state and concluded
that defendant’s statement, “I shot the guy,” was admissible
because “Benson’s sole question to the defendant was necessary for reasons of his own safety and that of the general public.” The trial court explained that the public safety
exception to the Miranda requirement applied because,
   “[a]s the first officer on-scene, Benson faced extreme exigencies, primarily occasioned by the facts that he knew there
   had been a shooting, that he did not know with certainty
   that there was only one shooter, that the shooter was still
   at large, that he had no idea whether the shooter intended
   further violence, * * * he was working with the assumption
   that the shooter was still armed[,] * * * [and] Benson did not
   know whether or not * * * defendant was a suspect.”
In accordance with that ruling, the trial court allowed
Benson to testify about defendant’s response to his question
as follows:
      “[Benson:] So I walked up behind [defendant], I holstered my weapon, removed a set of handcuffs and placed
   him into handcuffs behind his back.
      “[State:]   Did you ever speak with him?
      “[Benson:] I do; I said, what is your involvement here,
   and he responded to me, and I’ll quote off my police report,
   he said, quote, ‘I shot the guy.’
      “[State:]   What was your reaction to him telling you
   that?
      “[Benson:] After he said that I didn’t ask him anything else; I did a quick officer safety pat down to make
748                                             State v. Forshee

   sure there wasn’t any weapons that he could reach; I helped
   him to his feet and then * * * Officer Loudermilk arrives on
   scene a short time later and I help [defendant] to his feet
   and transfer custody to Officer Loudermilk.”
         As discussed, Loudermilk escorted defendant to his
patrol car, placed defendant in the back seat, and advised
defendant of his Miranda rights. Defendant’s challenge on
appeal relates only to the admissibility of his statement, “I
shot the guy”; defendant does not challenge the admissibility of any statements that he made after being advised of his
Miranda rights.
C. Expert Testimony
         At trial, multiple people testified, including defendant, as to the background facts that we summarized above,
and there was no dispute that defendant shot and killed the
victim in an office at their mutual workplace, while four
of defendant’s coworkers were present. The state’s theory,
as described in its opening statement, was that defendant
intentionally killed the victim and that defendant’s “goal-directed behavior over the period of 6 days” and defendant’s
demeanor before, on, and after the day of the shooting would
show that defendant was not under the influence of an EED
when he killed the victim. As discussed, defendant’s theory
was that he killed the victim while he was under the influence of an EED.
        As pertinent here, both parties introduced expert
testimony about EED.
        To refute defendant’s EED defense, the state called
Dr. Duncan, a clinical and forensic psychologist, who had
interviewed defendant on two occasions and reviewed several reports and records pertinent to this case. Duncan
explained that EED is typically a “more temporary, * * *
more impulsive, emotionally driven behavior,” such as
when “the husband comes home and sees the wife having
an affair and responds with rage and kills the person,”
and “so it’s kind of a more immediate reactive sort of violent pathway.” According to Duncan, a “better candidate for
an EED” defense is where there is an “immediate response
with the aggression” that is “triggered by something that’s
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300 Or App 739

 (2019)                             749

provocative or even threatening.” Duncan opined that “it’s
possible” for an EED to last more than one day but, in his
experience, “it tends not to last that long” because the “key
question is to what extent was there a loss of control” at the
time the defendant committed the homicide.

         In evaluating “impulsive violence versus self-controlled violence,” Duncan explained that he looks at
several “stages” of the defendant’s behavior. First, Duncan
explained the “baseline stage,” where he looks “at the
hours [and] the days leading up to the incident” to evaluate whether the defendant engaged in more “self-controlled
violence where * * * the [victim] is not necessarily a threat
and there’s * * * premeditation planning during the days
* * * [and] hours leading up or * * * the person’s thinking
about the act itself” and engaging in “more goal-directed
behavior.”

         In Duncan’s view, defendant’s actions in the days
leading up to the shooting showed that this was a controlled
act of violence that was exemplified by defendant’s goal-directed behavior during that time. Specifically, Duncan
pointed to the facts that defendant had already made the
decision to kill the victim one week before the shooting
occurred, reserved a cab to ensure that his truck would not
be left at work when he was arrested, called the cab company every day to confirm his reservation, and gave away
his dogs. Duncan also found it “significant” that defendant
decided to bring earplugs “to protect his ears with the plan
to go in and shoot [the victim]” and it shows that defendant
“spent a good deal of time thinking about going and killing
him.” In addition to taking a taxi to work, Duncan noted
that defendant’s decision to not bring a lunch, which was
also a break from defendant’s routine, indicates that defendant “wasn’t there to go to work” because he had already
formulated a plan to kill the victim instead. Defendant had
also made a comment to Duncan “that he was going to shoot
his boss if everything went as it should,” which “denote[d]
a plan, not only just a plan but a plan with a number of
steps to it.” Duncan stated that, although defendant “was
ruminating [about] the alleged murder” during that time,
“he was able to calm down, go to sleep, regroup, * * * [and]
750                                           State v. Forshee

refocus on the next day” to carry out his plan, which suggested that defendant was “able to deescalate.”
         With regard to the second “stage,” Duncan explained
that the “escalation phase” is where you examine whether
the violence is impulsive and triggered by an emotional
response by looking for “more acute signs of emotional distress, s[uch as] confusion, disorganized thinking, tearfulness, crying, startle reactions,” or “sensitiv[ity] to the environment.” Duncan further explained that when “emotion is
* * * taken out of the equation[,] * * * the person seems more
organized, deliberate in their efforts, even hyper focused in
their attempts to carry out the act.”
          Duncan noted that, in the days before the shooting, defendant complained about work, but that he otherwise “seemed fine” when he spoke to his brother and neighbor. In addition, Duncan stated that defendant’s ability to
have an “intelligent conversation with the taxi driver,” give
the taxi driver directions, and decision to continue to work
despite leaving his lunch at home “speak[s] to his ability to
* * * self-regulate, deal with that situation, [and] * * * move
on * * * with the plan,” and to defendant’s “capacity to make
decisions.”
         In “looking at [defendant’s] emotional capacity
at the time, cognitive capacity, [Duncan observed that]
he’s able to engage coworkers, interact with them briefly
before going in [the victim’s] office and carrying out the
act,” and that defendant “appear[ed] calm” and “relaxed,”
and was “not showing signs of acute distress.” Moreover,
when defendant showed up at work the day of the shooting
he was clean shaven, which gave a sense that defendant
was “functioning at the time” and was not so impaired that
he was unable to groom himself or take care of his “personal needs.” Thus, defendant “was able to maintain selfcontrol throughout the moment he started interacting with
people from the taxi driver all the way through his final
interactions with law enforcement,” which demonstrates
that defendant had the “emotional control and capacity
to socially engage.” Finally, Duncan testified that defendant bringing a gun, extra magazine, and earplugs, and
defendant’s repeated calls to the cab company, showed
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 (2019)                              751

defendant’s “focused attempt” to carry out the act and
“mental rehearsal of [the] crime sequence,” as well as a
“concerted effort in order to accomplish a goal.”
          With respect to the third stage, Duncan explained
that the “actual violence stage” is examined by looking at
whether the violence was impulsive and disorganized or
“more organized and directed.” Here, the violence was “targeted” and “focused” on the victim, and defendant shot the
victim a number of times in the chest and head, which indicated to Duncan that defendant was “trying to hit those
areas of the body,” particularly in light of defendant’s “organized behavior” and “calm presentation after the incident.”
Defendant’s ability “to hit or penetrate vital body parts when
he was shooting” the victim suggested to Duncan that this
was not a case of “emotionally based violence or impulsive
violence.” Moreover, there was no indication that defendant
ever threatened his coworkers or pointed the gun at them,
and, once the victim had been shot multiple times, the violence stopped. Duncan concluded that defendant’s ability to
“stay[ ] calm, focused, [and] directed at [the victim]” demonstrated that defendant had a “controlled mood during [the]
infliction of violence.”
         With respect to the fourth “stage,” the “recovery
period,” Duncan explained that he assesses how the person
looks after the act to see whether the person was still exhibiting “signs of emotional stress” and “emotional reactivity,”
or whether the person was “not as emotionally affected” by
the act of violence.
         After defendant killed the victim, defendant sat
down in the office, folded up his jacket, and set his gun and
clip down on top of the jacket while Krass called 9-1-1 and
identified defendant as the shooter. Defendant stated that
the victim “asked for it,” and Krass described defendant as
“cool and calm” after the shooting. Duncan testified that
defendant’s “calm” and “relaxed” appearance demonstrated
that defendant was not “showing signs of acute distress”
after the shooting. Furthermore, when Krass mistakenly
told the 9-1-1 operator that building number two was where
the shooting had occurred, defendant corrected Krass and
informed him that the correct building was number four.
752                                            State v. Forshee

Along those same lines, when the police arrived, defendant
got up and said, “it’s time to go meet the police.” According
to Duncan, “what you can deduce from that is that he’s oriented to his situation, like what’s happened, what’s just
taken place, he’s processing * * * Krass’ phone call and correcting that as needed. He knows what he did and what’s
going to happen.”
           Duncan testified that you can also “get[ ] the sense
that he realized what he did” by the “ ‘I’ statements” that
defendant made to officers shortly after the shooting,
including defendant’s statement to Benson, “I shot the guy.”
Duncan further observed that defendant was also able to
describe with an “ ‘I’ statement” what his motivation was.
Duncan described defendant’s statement to Loudermilk,
“This guy has been harassing me and trying to destroy my
life and the lives of half the people here; I just had all I could
take,” as a “key piece of data as [to] why he did do what he
did” and noted that that statement was consistent with what
he told the psychiatrists in subsequent interviews. He also
noted that that statement showed that defendant was able
to “express[ ] his feelings” and “verbaliz[e] his complaints
* * * to law enforcement.” According to Duncan, those two
“ ‘I’ statements” also showed that defendant “was aware of
the wrongdoing of the violence he committed.”
         In light of defendant’s ability to listen in on the 9-1-1
call and correct Krass as to the location of the shooting, and
defendant “reporting to officers what he did and why he did
it,” Duncan concluded that defendant “was aware of his surroundings” after the shooting.
          Finally, Duncan explained that he evaluates the
person’s “return to baseline” after the event because, if the
person has “engaged in a serious impulsive violent act,” the
person “may have difficulties remembering” or “even maybe
show signs of being traumatized by the event itself,” whereas
a person who is less traumatized by the event may have a
“better memory recall of the event” or “more positive memories of the act itself.”
         When defendant was asked how he felt about causing the victim’s death, defendant continued to believe that
the victim “deserved to die.” Defendant also stated that he
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felt “peaceful” and “relaxed” and like “he did a good job”
after he completed the shooting. Additionally, defendant
told his expert during an interview that it was a “rational
decision” to kill the victim and that he did not regret killing the victim. Duncan concluded that defendant’s lack of
remorse after the shooting was “consistent with the model
of the self-controlled violence.”
         Based on those observations, Duncan concluded
that, although defendant was under some stress and had
“a depressed mood,” this was more typical of a case of “goal-directed behavior” and “self-controlled violence” rather than
EED.
          To support his EED theory, defendant offered the
testimony of Dr. Cooley, a forensic psychologist. Cooley interviewed defendant on two occasions and reviewed the police
reports and defendant’s medical records. Cooley diagnosed
defendant with “major depression with psychotic features,
an anxiety disorder, * * * and long-standing personality
characterological issues.” Cooley testified that defendant’s
depression, anxiety, and other issues would contribute
to defendant being under the influence of an EED at the
time of the shooting because defendant “is more likely to
be immobilized by [his] emotional difficulties than someone who doesn’t have that underlying mental illness” and
“that means that [his] ability to think and reason and make
decisions is going to deteriorate more quickly than someone
who does not have a psychological or mental health issue.”
In Cooley’s opinion, defendant’s mental health issues are
“very important to this [EED] analysis” because, if “you are
not thinking rationally” due to mental health issues, “you
don’t see logical alternatives and you don’t know what to do
* * * so your mind is controlled by your emotions rather than
your reason.”
          Cooley observed that the write up was a “very major
issue” for defendant because defendant “didn’t have much
in his life” other than his job, had several health problems,
“didn’t see the possibility of really getting another decent
job,” and “was really worried about what would happen to
him financially” if he lost his job. In addition, Cooley testified that “a person [can] stay in a state of extreme distress
754                                            State v. Forshee

for days on end” because when “something horrible happens
and then they ruminate, and they think about it, * * * it gets
bigger and it gets worse,” so “oftentimes over a period of time
the stress actually increases rather than decreases.” Cooley
acknowledged, however, that EED “is a temporary state of
mind” that one could not stay in forever because “something
usually * * * happens to break that state,” and “if it’s interrupted and the person is no longer suffering from [EED]
and commits a homicide then that defense would not apply.”
Cooley concluded that defendant was “in a state of disturbance” and that there was nothing in the “break in time
between getting written up and the shooting” that broke
defendant’s state of “distress.”
D. Closing Arguments and the Verdict
         In addition to explaining how the evidence supported a conviction for the charged crime of murder, the
state’s closing argument focused on defeating defendant’s
EED claim. The prosecutor began by summarizing the testimony of all of the witnesses in the order that they testified
and urging the jury to find that this was a “coldblooded,
premeditated, well thought out and planned execution.”
        The first time the prosecutor referenced the challenged statement, “I shot the guy,” was when the prosecutor
summarized Benson’s testimony as follows:
   “He was the first on the scene; he gave [defendant] multiple commands, [defendant] understood those commands,
   he obeyed those commands, he was cooperative; he was
   described as calm. There were no signs of impairment, he
   was calm and collected and he reacted as a normal citizen. [Benson] considered [defendant] to be a normal citizen
   until [defendant] said the following: I shot the guy.”

The prosecutor continued to argue that defendant was not
under the influence of an EED at the time of the shooting,
specifically noting that defendant had also corrected Krass
as to the correct building number where the shooting had
occurred when Krass called 9-1-1, that Krass described
defendant as “calm, cool, and collected after the shooting,”
and that “when the police showed up he said, it’s time to go
meet the police.”
Cite as

300 Or App 739

(2019) 755

The second time the prosecutor referenced the challenged statement was when he summarized Loudermilk’s
testimony:
“[Loudermilk] had daily interactions with mental health
issues, didn’t see anything, as none of the officers did or
other people that worked with him, that made him think
that he was under an Extreme Emotional Disturbance.
Described him as calm and matter-of-fact; [defendant]
responded appropriately to questions, in other words he
didn’t say, what’s your name and he says blue. He told him
what his name was. He was even able to give “I” statements; I shot the guy. And then he tells him, this guy has
been harassing me and trying to destroy my life and the
lives of half the people here, I had all I could take. He gives
him his reason, his motive.”
The prosecutor then described how two of the other police
officers’ testimony also reflected that defendant was “calm”
after the shooting and was not “suffering from any kind of
emotional distress.”
The prosecutor emphasized the expert testimony
on EED as the “most important,” and stated that the jury
would need “to compare doctors and * * * use your common
sense and reason in deciding * * * if th[e] six days between
[defendant’s] write-up when he snaps and committing the
crime, when this huge amount of premeditated plan takes
place, [defendant] is still in the heat of passion.” The prosecutor argued:
“EED is rare, and the key thing you’re looking for is a loss
of control in Extreme Emotional Disturbance. It’s a temporary emotionally-driven state. Temporary is the key;
this sprung out from heat of passion. Again, finding your
spouse involved in an affair or you’re standing outside
playing catch with your son and he runs after the ball and
he gets run over by somebody who’s drunk. You respond
immediately, and you kill that person. The defense wants
you to think that you can wait up to six days, plan that
murder and come back to kill the person who is sleeping
with your wife or find that person that ran over your child
and kill him. Nobody has testified of an occurrence that
they’re aware of that lasted more than a day. Dr. Duncan
said specifically it is unlikely to last more than a day, and
Dr. Cooley said at best it could. But again, couldn’t give you
756 State v. Forshee

one example of an Extreme Emotional Disturbance where
that disturbance lasted for a long time.”
The final time the prosecutor mentioned the challenged statement was when the prosecutor argued generally
that the evidence, including defendant’s interactions with
people before and after the shooting, defendant calling a
taxi and giving away his dogs, and defendant’s choice to use
earplugs during the shooting, show that defendant was not
being impulsive and that this was “goal-directed behavior”
that was inconsistent with defendant’s EED claim. In doing
so, the prosecutor also argued that defendant had “[a]wareness of wrongdoing during [the] violence” because defendant
“wait[ed] for police” and told “them immediately afterwards,
I shot the guy and tells them why.”
Defendant’s closing argument focused on his EED
claim, based partly on the evidence that defendant was “a
year or two years from retirement with several health concerns, several mental health concerns,” and the fact that
defendant had been written up and thought that he would
be fired as a result. Defendant emphasized that “Dr. Duncan
and Dr. Cooley agree[d] on three primary things that [the
jury] need[s] to consider”: (1) defendant “was suffering from
a mental illness, at least depression, that can cause the brain
to malfunction,” (2) that EED “can last for days,” and (3) that
defendant “was under a great deal of stress.” Based on the
evidence of defendant’s mental health issues and defendant’s
belief that he thought he was going to be fired and lose his
retirement as a result of the write-up, defendant argued
that he was under the influence of an EED that caused him
to lose the ability to forego the homicide, and, thus, the jury
should convict him of first-degree manslaughter.
The jury found defendant guilty of murder.
II. ANALYSIS
A. The Parties’ Arguments on Appeal Regarding the
Admissibility of Defendant’s un-Mirandized Statement
On appeal, defendant contends that the trial court
erred when it refused to suppress defendant’s statement, “I
shot the guy,” that he made after Benson ordered him to
the ground at gunpoint, before Benson had read defendant
Cite as

300 Or App 739

 (2019)                              757

his Miranda warnings. Defendant asserts that Benson violated his rights under Article I, section 12, of the Oregon
Constitution and the Fifth Amendment to the United States
Constitution by interrogating him in custody without having first Mirandized him. Defendant acknowledges that the
United States Supreme Court recognized a “public safety”
exception to the Miranda requirement in Quarles, but he
argues that it does not apply here because the “exigency
did not justify the questioning of defendant” and because
Benson’s “questioning was not safety related.” Defendant
also argues that no analogous exception applies under the
Oregon Constitution, because “[t]he public safety exception
is incompatible with Article I, section 12’s rights-based prohibition on compelled testimony” and that, even if it does,
the exception should be narrowly tailored to make Benson’s
question impermissible under the circumstances of this case.
Finally, defendant asserts that the admission of his statement was not harmless because “the prosecution relied on
defendant’s statement to discredit his mental state defense,
which was the only factual issue in the trial, and repeatedly
drew the fact-finder’s attention to it.”
         In response, the state argues that, because Benson’s
“question was reasonably necessary for his own safety and
the safety of the public, and was not designed solely to elicit
testimonial evidence,” the Quarles public safety exception to the Miranda requirements applied under the Fifth
Amendment. The state also urges us to recognize a public
safety exception under Article I, section 12, contending that
the reasoning articulated by the United States Supreme
Court in Quarles for the public safety exception “applies
with equal force under Article I, section 12.” Cf. Jones,

296 Or App at 570

 (leaving that question open).
         At oral argument, the state acknowledged that we
may not need to decide the Article I, section 12, question, if
we decide that the admission of defendant’s statement was
harmless as we did in Jones,

296 Or App at 570-73

. That
is the case, the state asserted, because, “if you look at the
record there is a lot of evidence * * * that the one statement
to the officer does not seem to be particularly salient or
particularly important to the state’s case” given the “ton of
[other] evidence that this was not EED” such as defendant
758                                                          State v. Forshee

being gone from work for six days, giving away his dogs, and
helping Krass call 9-1-1, and defendant’s additional postMiranda “I” statement to Loudermilk about his reasons for
killing the victim. See State v. Sperou,

365 Or 121, 140

442 P3d 581

 (2019) (“[W]e have an independent obligation to
consider whether defendant was prejudiced,” even when the
“state has not developed a harmless-error argument.”). The
state made clear, however, that it was not making any concessions regarding harmless error, and it continued to urge
us to recognize a public safety exception under Article I, section 12.
B.    Admissibility of Defendant’s Statement Under Article I,
      section 12 5
          We do not reach the merits of the parties’ Article I,
section 12, arguments because our review of the record leads
us to conclude, for the reasons expressed below, that there is
little likelihood that the jury’s verdict was influenced by the
admission of defendant’s single pre-Miranda warning statement, “I shot the guy.” In other words, we conclude that, in
light of the other evidence in the record, any error in admitting that statement was harmless. Thus, we need not decide
whether a public-safety exception exists under Article I, section 12, and we leave that issue for another day.
         “It is defendant’s burden, as the party seeking
reversal based on a claim of evidentiary error, to show some
likelihood that the challenged evidence affected the verdict.” Jones,

296 Or App at 570-71

 (internal quotation marks
omitted).
     “In assessing whether erroneously admitted or excluded
     evidence affected the verdict, we consider the nature of the
     evidence in the context of the trial as a whole. * * * Among
     other factors, we consider whether the evidence was cumulative of other evidence admitted without objection, which
     includes assessing any differences in the quality of the
     erroneously admitted or excluded evidence as compared
     to the other evidence on the same issue. * * * We also consider how the case was tried and the extent to which the

    5
      Article I, section 12, provides, in part, that “[n]o person shall * * * be compelled in any prosecution to testify against himself.”
Cite as

300 Or App 739

 (2019)                             759

   disputed evidence was or was not emphasized by the parties and central to their theories of the case.”
State v. Simon,

294 Or App 840, 849

433 P3d 385

 (2018).
         We begin by “determin[ing] the particular evidentiary issue that is subject to harmless error analysis.” State
v. Maiden,

222 Or App 9, 13

191 P3d 803

 (2008), rev den,

345 Or 618

 (2009). As defendant correctly observes, defendant did not dispute that he shot and killed the victim, and
the “singular factual issue” in this case reduced to whether
defendant “acted under extreme emotional disturbance.”
Defendant asserts that his EED defense was undermined
by the admission of his un-Mirandized statement, “I shot the
guy.” In particular, defendant points to Duncan’s testimony
that defendant’s two “I” statements, “I shot the guy,” and, “I
just had all I could take,” gave “the sense that [defendant]
realized what he did.” Next, defendant points to the prosecutor’s references to the challenged statement during the
prosecutor’s closing argument to argue that the error was
not harmless.
         Considering the record as a whole, we conclude that
there is little likelihood that the jury’s verdict was affected
by the un-Mirandized statement that was admitted over
defendant’s objection. As an initial matter, defendant’s
statement, “I shot the guy,” added very little to the evidence
in the record that defendant was, in fact, the person who
shot and killed the victim in front of four of his coworkers.
Defendant never claimed otherwise and stipulated that he
had shot the victim nine times, causing the victim’s death.
Accordingly, there is little likelihood that the jury’s finding
that defendant killed the victim was affected by the admission of that statement.
         Additionally, in the context of the other evidence
admitted at trial and the arguments as a whole, it is unlikely
that the jury’s verdict on defendant’s EED defense was influenced by defendant’s statement, “I shot the guy.”
         First, contrary to defendant’s assertion, defendant’s un-Mirandized statement was not the major focus
of the state’s argument that defendant was not under the
influence of an EED at the time that he shot the victim.
760                                          State v. Forshee

Our review of the record reveals that it was but one of the
many facts on which the prosecutor relied to refute defendant’s EED defense and, as we discuss in more detail below,
was merely cumulative of other evidence of defendant’s
demeanor and statements shortly after the shooting that
tended to show that defendant was aware of the violence
that he had perpetrated against the victim and was not
under the influence of an EED at the time of the shooting.
As noted above, the bulk of the state’s argument was much
more focused on the six-day time gap between the write
up and the shooting, and the many steps that defendant
took during that time to prepare to kill the victim, such
as defendant reserving a taxi and calling to confirm his
reservation every day, defendant giving away his dogs, and
defendant’s choice to use earplugs during the shooting. See
Maiden,

222 Or App at 13

 (in “determining the possible
influence of the error on the verdict, we consider the importance of the erroneously admitted evidence to a party’s theory of the case”).
         Second, the prosecutor also focused heavily on defendant’s calm demeanor during his interactions with several people before the shooting to refute defendant’s claim
that he was under the influence of an EED when he shot
the victim. For example, the day defendant received the
write up, defendant’s coworker and union representative,
Freitag, called defendant to let defendant know that he did
not think defendant would be fired for the forklift violation,
and, when Freitag called defendant again that afternoon, it
sounded like defendant had “calmed down,” and defendant
had a conversation with Freitag about asparagus being on
sale at the grocery store. The prosecutor argued that that
evidence showed that defendant had “[c]learly * * * calmed
down” before the shooting and was not under the influence
of an EED during those six days. Likewise, the prosecutor
pointed out that, when defendant spoke with his brother
and his neighbor before the shooting, defendant “complained
about work but he wasn’t emotional,” further demonstrating that defendant was not under the influence of an EED
before or during the shooting. In like manner, the prosecutor reminded the jury about defendant’s ability to give the
taxi driver appropriate directions when the taxi driver could
Cite as

300 Or App 739

 (2019)                              761

not find defendant’s home, and how the taxi driver had “no
concerns about his demeanor” and described it as a “normal
fare.”
           Finally, defendant’s statement, “I shot the guy,” was
cumulative of other evidence that defendant recognized
and was aware of what he had done shortly after the shooting, because the other evidence made that point just as, if
not more, powerfully than defendant’s challenged statement and it refuted defendant’s claim that he was under
the influence of an EED when he shot the victim. That evidence includes defendant’s other unchallenged “I” statement
to Loudermilk, which Duncan focused on, that explained
defendant’s reasoning for killing the victim—“This guy
has been harassing me and trying to destroy my life and
the lives of half the people here; I just had all I could take.”
Duncan described that as a “key piece of data as [to] why
[defendat] did do what he did” and noted that that statement
showed that defendant was able to “express his feelings” and
“verbaliz[e] his complaints * * * to law enforcement.” In that
same vein, the prosecutor argued that defendant’s ability to
give “ ‘I’ statements” and “respond[ ] appropriately to questions” undercut defendant’s EED claim.
          The evidence of defendant’s mental state immediately after the shooting also includes defendant’s interaction
with his coworker, Krass. As discussed above, immediately
after defendant killed the victim, defendant sat down in the
office, folded up his jacket, and set his gun and the clip down
on top of the jacket while Krass called 9-1-1 and identified
defendant as the shooter. Defendant then stated that the
victim “asked for it,” and Krass described defendant as “cool
and calm” after the shooting. Duncan testified that defendant’s “calm” and “relaxed” appearance demonstrated that
defendant was not “showing signs of acute distress” after
the shooting.
         Additionally, as discussed above, Duncan testified
that it is important to assess the person’s reactions immediately after the violence to determine whether the person
was exhibiting “signs of emotional stress” and “emotional
reactivity,” or whether the person was “not as emotionally
affected” by the act of violence. Of particular note on that
762                                           State v. Forshee

point is Krass’ testimony that, when Krass had mistakenly
told the 9-1-1 operator that the shooting had occurred in
building two, defendant corrected Krass and informed him
that the correct building was number four and, when the
police arrived, defendant got up and said, “it’s time to go
meet the police.” According to Duncan’s testimony, “what
you can deduc[e] from that is that he’s oriented to his situation, like what’s happened, what’s just taken place, he’s
processing * * * Krass’ phone call and correcting that as
needed. He knows what he did and what’s going to happen.”
It also showed that defendant “was aware of the wrongdoing of the violence he committed” and that defendant was
not under the influence of an EED when he shot the victim. The prosecutor relied on that testimony to argue that
defendant’s calm demeanor, ability to correct Krass about
the building number, and awareness of the wrongfulness
of his actions immediately after the shooting was highly
persuasive evidence to refute defendant’s claim that he was
under the influence of an EED when he shot the victim.
See State v. Bement,

363 Or 760, 779

429 P3d 715

 (2018)
(“[E]ven when evidence relates to a central factual issue, * * *
[it] may be harmless if it is merely cumulative, instead of
qualitatively different than evidence presented to the fact-finder.” (Internal quotation marks omitted.)); Jones,

296 Or App at 571-73

 (concluding that any error in the admission
of the defendant’s un-Mirandized statements was harmless
where it was merely cumulative of other evidence of defendant’s state of mind and “other evidence in the record made
that point more powerfully,” even though “the outcome of the
trial turned on whether the jury was persuaded that [the
defendant] had not acted in self-defense”).
         Along those same lines, both Benson and Loudermilk
testified that, when they observed defendant shortly after the
shooting, defendant’s demeanor was “cooperative” and “calm
and matter-of-fact” and none of the officers that observed
defendant that day noticed any “mental health issues” that
raised any concerns. The prosecutor argued that that evidence further demonstrated that defendant was not in such
an extreme emotional state during the shooting that would
have made defendant unaware of what he had done and the
consequences of his actions.
Cite as

300 Or App 739

 (2019)                                               763

         Given defendant’s interaction with Krass, defendant’s other “I” statement, and the other evidence of defendant’s state of mind immediately after the shooting, defendant’s single statement, “I shot the guy,” was cumulative at
most to show that defendant was not under the influence of
an EED when he shot the victim, because other evidence
also shows that defendant was aware of what he had just
done and was able to respond appropriately. There is little likelihood that that statement influenced the verdict.
Accordingly, defendant’s contention that the trial court erred
when it admitted that statement and concluded that Benson
did not violate defendant’s Article I, section 12, rights does
not provide a basis for reversal.
C. Admissibility of Defendant’s Statement Under the Fifth
   Amendment 6
         We now turn to defendant’s argument that Benson’s
question about defendant’s involvement in the shooting did
not fall within the Quarles “public safety” exception under
the Fifth Amendment.
         In Quarles, the Supreme Court concluded “that the
need for answers to questions in a situation posing a threat
to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against
self-incrimination.”

467 US at 657

. An officer’s questions are
justified under the “public safety” exception to the Miranda
warning requirement if they are “questions necessary to
secure their own safety or the safety of the public” rather
than “questions designed solely to elicit testimonial evidence
from a suspect.”

Id. at 659

. The “public safety” exception is
“circumscribed by the exigency which justifies it.”

Id. at 658

.
        Here, the trial court made the following findings
with regard to the public safety exception:
    “As the first officer on-scene, Benson faced extreme exigencies, primarily occasioned by the facts that he knew that
    there had been a shooting, that he did not know with certainty that there was only one shooter, that the shooter
    was still at large, that he had no idea whether the shooter

    6
      The Fifth Amendment provides, in part, that “[n]o person * * * shall be compelled in any criminal case to be a witness against himself.”
764                                            State v. Forshee

   intended further violence, and that he was working with
   the assumption that the shooter was still armed. As soon
   as [Benson] saw defendant, who quickly put his hands over
   his head, Benson ordered * * * defendant to turn around, to
   get on the ground, etc. Benson did not know whether or not
   defendant was a suspect and was credible in his testimony
   that, given the circumstances, he would have approached
   anyone at the scene in the same fashion.”
“In order to gain further situational awareness,” Benson
then asked defendant, “what is your involvement here?”
Defendant responded, “I shot the guy,” and no further
pre-Miranda statements were elicited.
         The trial court’s findings are supported by ample
evidence in the record and, under these circumstances, we
readily conclude that Benson’s question about defendant’s
involvement in the shooting was justified under the public
safety exception to the Miranda warning requirement.
          We believe that the exigency that occasioned Benson’s
question was even more compelling than the situation faced
by the officer in Quarles. In Quarles, the officer chased down
the defendant in a supermarket and, after momentarily losing sight of the defendant, “ordered him to stop and put his
hands over his head.”

467 US at 652

. The officer frisked the
defendant and found an empty shoulder holster for a gun.

Id.

 When the officer asked defendant where the gun was
without giving defendant Miranda warnings, the defendant “was surrounded by at least four police officers and
was handcuffed” and “there was nothing to suggest that
any of the officers were any longer concerned for their own
physical safety.”

Id. at 652, 655

. Under those circumstances,
the Supreme Court concluded that the officer’s question
about the whereabouts of the gun was justified under the
“public safety” exception because, “[s]o long as the gun was
concealed somewhere in the supermarket, with its actual
whereabouts unknown, it obviously posed more than one
danger to the public safety: an accomplice might make use
of it, a customer or employee might later come upon it.”

Id. at 657

.
        Here, Benson arrived on a scene where an unknown
shooter was still at large, and Benson did not know if
Cite as

300 Or App 739

 (2019)                                                  765

defendant was the perpetrator, a witness, or a potential victim of the shooting when he encountered defendant in the
parking lot. Benson’s question was reasonably necessary
to “secure [his] own safety or the safety of the public” and
it was not “designed solely to elicit testimonial evidence.”
Id. at 659; see Fleming v. Collins, 954 F2d 1109, 1113 (5th
Cir 1992) (concluding that the officer’s questions about the
defendant’s involvement in an armed bank robbery after
finding the defendant shot and being held at gunpoint by
a citizen were justified under the public safety exception
because the officer confronted a “still-volitile” and “confusing
situation” where she “did not know whether [the defendant],
or the man who had drawn a gun on him, was the victim
or perpetrator of an offense” and “did not know exactly who
had been involved in the disturbance at the bank, and ‘she
didn’t want to get shot in the back’ ”). Furthermore, Benson
asked only the question necessary to determine whether the
exigency that he faced still existed before Loudermilk read
defendant his Miranda rights. See Quarles,

467 US at 659

(observing that the officer “asked only the question necessary to locate the missing gun before advising respondent
of his rights”).7 Thus, Benson’s question was justified under
the Quarles public safety exception for Fifth Amendment
purposes.
                           III.    CONCLUSION
         We conclude that, even if the trial court erred in
admitting defendant’s statement because it was obtained in
violation of defendant’s rights under Article I, section 12,

     7
       Defendant contends that, even if “the requirements of the public safety
exception were met, remand is required to determine whether defendant’s statements were compelled” because “the trial court did not determine whether defendant’s response to the officer’s question was voluntary.” As noted above, the state
filed a motion for a Jackson/Denno hearing which requests “a reliable determination on the issue of voluntariness” under the Fourteenth Amendment and argued
that defendant’s “capacity of self-determination was [not] critically impaired.”
Jackson,

378 US at 376-77

. The trial court found that “defendant did not ever
intend to conceal the fact that he shot the victim,” when it decided that defendant’s statement was “voluntarily made and admissible.” There is ample evidence
in the record to support that finding. Our review of the record also leads us to conclude that defendant’s statement, “I shot the guy,” was not “the product of a will
overborne.” Davis v. North Carolina,

384 US 737, 742

86 S Ct 1761

16 L Ed 2d 895

 (1966). Therefore, defendant’s statement was not “coerced under traditional
due process standards.” Quarles,

467 US at 655

 n 5.
766                                         State v. Forshee

any such error was harmless. Furthermore, defendant’s
statement was not obtained in violation of defendant’s rights
under the Fifth Amendment, because the officer’s question
fell within the public safety exception, as articulated by
the United States Supreme Court in Quarles,

467 US 649

.
Accordingly, we affirm.
        Affirmed.

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