According to the state, the incriminating statements that defendant sought to suppress occurred only after defendant told Lewis that he wanted to talk to Myers. Citing State v. Acremant , 338 Or. 302, 108 P.3d 1139, cert. den. , 546 U.S. 864, 126 S.Ct. 150, 163 L.Ed.2d 148 (2005), the state argues that, even when an officer disregards a suspect's invocation of Article I, section 12, rights, the suspect may later validly waive his or her rights and speak with police so long as the defendant's later renewal of contact with police was not a product of the earlier unlawful interrogation.We are not persuaded by the state's alternative argument.

We first consider whether defendant validly waived his rights at the jail. See State v. Acremant, 338 Or. 302, 321–24, 108 P.3d 1139,cert. den.,546 U.S. 864, 126 S.Ct. 150, 163 L.Ed.2d 148 (2005) (determining whether the defendant validly waived his right to counsel where the defendant claimed that the admission of his statements during his penalty trial violated his right against compelled self-incrimination and the right to counsel). To be valid under Article I, section 12, and the Fifth Amendment, “a waiver of the right to counsel must be knowing, intelligent, and voluntary under the totality of the circumstances.”

Id. at 380 n. 6, 811 P.2d 1371. The final case in which this court considered the lost record statute is State v. Acremant , 338 Or. 302, 338, 108 P.3d 1139 (2005), a case that came directly to this court on mandatory review of a trial court's sentence of death. Ninety minutes of the record of the defendant's penalty trial had been inadvertently erased, and, to indicate what had occurred during that time, the state had supplemented the record with logs and affidavits, including an affidavit from the trial court reporter.

We begin with an overview of the facts admitted into evidence during defendant's penalty-phase trial. See State v. Acremant, 338 Or. 302, 305, 108 P.3d 1139, cert. den., 546 U.S. 864, 126 S.Ct. 150, 163 L.Ed.2d 148 (2005) (reciting facts from penalty-phase evidence where defendant pleaded guilty to aggravated murder); ORS 163.150(1)(a) (regarding procedures for penalty-phase proceedings). In 1994, defendant gave birth to her daughter, Jeanette, in California.

In applying the Smith test, this court has examined several factors, including, among others, whether there was an agreement between the informant and the state; whether the state actively instructed, encouraged, or discouraged the informant; and what motive led the informant to gather evidence. See id. at 13-14, 791 P.2d 836 ; State v. Acremant , 338 Or. 302, 329, 108 P.3d 1139, cert. den. , 546 U.S. 864, 126 S.Ct. 150, 163 L.Ed.2d 148 (2005) ; State v. McNeely , 330 Or. 457, 461, 8 P.3d 212, cert. den. , 531 U.S. 1055, 121 S.Ct. 663, 148 L.Ed.2d 565 (2000). We use the word "agent" here because we have used it in State v. Smith , 310 Or. 1, 791 P.2d 836 (1990), and other cases involving the relationship between police and nonpolice informants.

Id. at 104, 602 P.2d 1059. See also Haynes , 288 Or. at 70, 602 P.2d 272 (identifying information that, under certain circumstances, police categorically must provide to permit a determination that the defendant "knowingly and intelligently" waived Article I, section 12, right to counsel); State v.Acremant , 338 Or. 302, 321, 108 P.3d 1139 (2005) (describing a single standard of review for whether a waiver is "knowing, intelligent, and voluntary under the totality of the circumstance"—that, "[a]lthough we are bound by its findings of historical fact, we review a trial court's conclusions regarding a defendant's waiver of the right to counsel for legal error"). Moreover, reviewing as a question of law all requirements for a valid waiver of Article I, section 12, rights aligns with how this court reviews other questions that bear on whether officers have honored those rights.

When further interrogation after that point yields incriminating testimony, the testimony is compelled and inadmissible under Article I, section 12. See id. at 204–05, 166 P.3d 528. Whether a defendant's statement is an unequivocal or equivocal invocation of his derivative right to counsel is a question of law. State v. Acremant, 338 Or. 302, 322, 108 P.3d 1139, cert. den., 546 U.S. 864, 126 S.Ct. 150, 163 L.Ed.2d 148 (2005) (citing Charboneau, 323 Or. at 55, 913 P.2d 308). Article I, section 12, provides, in part, that “[n]o person shall * * * be compelled in any criminal prosecution to testify against himself.”

We review the legal conclusions underlying the trial court's ruling as a matter of law. See State v.Acremant, 338 Or 302, 321-22, 108 P3d 1139 (2005) (identifying issues whether police interrogated suspect and whether suspect waived right to counsel as matters of law). Although the constitutional rights involved arise under both Article I, section 12, of the Oregon Constitution and the Fifth Amendment to the United States Constitution, we consider the issues first under the Oregon Constitution. See State v. Kennedy, 295 Or 260, 261, 264-65, 666 P2d 1316 (1983) (describing constitutional methodology). Article I, section 12, provides, in part:

When a suspect in custody invokes the right to counsel, the suspect may later waive that right "by initiating further contact with the police." State v. Acremant , 338 Or. 302, 322, 108 P.3d 1139, cert. den. , 546 U.S. 864, 126 S.Ct. 150, 163 L.Ed.2d 148 (2005). And "even after an Article I, section 12, violation, a suspect retains the power to validly waive the right against self-incrimination ‘as long as that waiver is knowing, intelligent, and voluntary under the totality of the circumstances.’ "

However, after a suspect in custody has asserted the right to counsel, "the suspect remains free to waive that right by initiating further contact with the police." State v. Acremant , 338 Or. 302, 322, 108 P.3d 1139, cert. den. , 546 U.S. 864, 126 S.Ct. 150, 163 L.Ed.2d 148 (2005) ; State v. Kramyer , 222 Or.App. 193, 197-99, 194 P.3d 156 (2008) (driver's continued attempts to complete field sobriety tests after unequivocally invoking his right to counsel reinitiated the interaction with the police, thereby permitting officers to further question him); Edwards v. Arizona , 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (an accused who has expressed a desire to deal with the police only through counsel cannot be subject to further interrogation by the authorities until counsel has been made available "unless the accused himself initiates further communication, exchanges, or conversations with the police"). To demonstrate that a suspect has waived a prior invocation of the right to counsel, the state must show not only that the suspect initiated communication with the police in a way that "evinced a willingness and a desire for a generalized discussion about the investigation" but also