Background
In the early morning hours of November 22, 2021, Jacob Nebeker killed his mother’s husband, G, in a Washington County home. Nebeker’s cousin, Slaven, witnessed the killing and called 9-1-1 while hiding behind a tree on an adjacent golf course. When Deputy Kringhelde arrived and located Slaven still on the phone with the 9-1-1 operator, visibly shaken and crying, she asked a single general question — essentially “what happened?” — prompting Slaven to give a detailed account. That account included not only what she saw during the attack but also a statement Nebeker had made to her in the car earlier that evening announcing his plan to kill G, and Nebeker’s kitchen request for rubber gloves just before the killing.
Corporal Mitchell separately spoke with Nebeker in the driveway, read him Miranda warnings, and questioned him for roughly twenty minutes until Nebeker invoked his right to counsel. Slaven died before trial, rendering her unavailable as a witness. Nebeker moved pretrial to suppress his own statements to Mitchell as an involuntary Miranda waiver and to exclude Slaven’s backyard statements to Kringhelde as testimonial under the Sixth Amendment’s Confrontation Clause. He also moved to exclude proposed state rebuttal evidence of his prior drug use. The trial court denied all three motions. Nebeker entered a conditional guilty plea under ORS 135.335(3), preserving his right to appeal those rulings.
On appeal, the panel — Judge Egan writing, joined by Presiding Judge Aoyagi and Judge Joyce — addressed the Confrontation Clause issue first, then the Miranda issue in light of the Oregon Supreme Court’s recent decision in State v. Miller, 375 Or 173 (2026) (Miller II).
The Court’s Holding
The court reversed on the Confrontation Clause assignment. Applying Davis v. Washington, 547 US 813 (2006), Michigan v. Bryant, 562 US 344 (2011), and State v. Camarena, 344 Or 28 (2008), the court held that Slaven’s backyard statements to Kringhelde were a mix of nontestimonial and testimonial statements. Statements identifying Nebeker and describing the physical act of the killing — the crashing sounds, cries for help, the bag and cord, and Nebeker’s request that Slaven help dispose of the body — were nontestimonial, as they are the type of information necessary to guide an ongoing emergency response. However, Slaven’s account of Nebeker’s stated plan to kill G (made in the car earlier that night), her observations of Nebeker and G going in and out of the bathroom, the drinking earlier in the evening, and Nebeker’s kitchen request for gloves were testimonial: they established past facts unnecessary to resolve the perceived ongoing emergency and were the kind of statements aimed at establishing what had happened for purposes of later prosecution.
On the Miranda issue, the court affirmed the trial court’s suppression ruling on its own terms because Nebeker conceded on appeal that circumstances were not compelling — meaning Miranda warnings were technically unnecessary — leaving no viable waiver challenge. However, citing Miller II, the court noted that voluntariness of statements to law enforcement is a distinct question from Miranda that was never litigated below, and directed that it may be addressed on remand if Nebeker withdraws his plea. The court declined to reach the third assignment of error regarding prior drug-use rebuttal evidence, noting that the record may develop differently on remand.
Because the conditional guilty plea under ORS 135.335(3) is reversed as to the testimonial-statement error, Nebeker is entitled to an opportunity to withdraw his plea and proceed to trial, at which point the testimonial portions of Slaven’s backyard statement would be excluded, and the voluntariness of his own statements to Mitchell would be open for litigation.
Key Takeaways
- An excited utterance admissible under state hearsay law is not automatically exempt from the Confrontation Clause; when the declarant is unavailable, each statement must still be assessed for its primary purpose under the Davis/Bryant framework.
- A single police question can elicit a mix of testimonial and nontestimonial statements; courts must parse the content of each statement, not simply label the entire encounter as emergency-response or post-emergency.
- Under Miller II, the voluntariness of a defendant’s statements to police is a separate legal question from whether Miranda warnings were required — a ruling that no compelling circumstances existed does not resolve whether the statements were voluntarily made.
- A conditional guilty plea under ORS 135.335(3) preserves the right to withdraw the plea if any reserved pretrial ruling is reversed on appeal.
Why It Matters
This decision reinforces that the Confrontation Clause analysis is statement-by-statement, not encounter-by-encounter. Prosecutors and defense counsel in Oregon must now carefully parse field witness statements made to first-responding officers, even brief and informal ones, to identify which portions cross from emergency-response narration into the kind of historical, inculpatory detail that the Sixth Amendment reserves for live cross-examination. The case is a practical guide for litigating mixed-purpose encounters under Camarena and Bryant.
The court’s treatment of the voluntariness issue under Miller II also signals a broadening obligation for the state: even when police properly conclude that Miranda warnings are not required, the prosecution may still need to affirmatively establish that a defendant’s statements were voluntary before they can be used at trial — a requirement that may prompt more thorough contemporaneous documentation of the circumstances surrounding non-custodial field interviews.