State v. Garrison
Decision Date | 11 March 1974 |
Parties | STATE of Oregon, Respondent, v. Mark Andrew GARRISON, Appellant. |
Court | Oregon Court of Appeals |
Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellant.
Thomas H. Denney, Asst. Atty. Gne., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.
Before SCHWAB, C.J., and LANGTRY and FOLEY, JJ.
Defendant was convicted by a jury for the crime of murder in violation of ORS 163.115 on an indictment charging that he strangled Daniel Burns Boles with a rope. He raises two assignments of error: (1) that certain incriminating statements were made and used against him after he had requested the assistance of counsel, and (2) that out-of-court admissions of his accomplice should not have been admitted at trial.
Defendant in his testimony at trial admitted that he and the accomplice, Daniel Deaver, conspired to make a trip to downtown Portland for the purpose of stealing an automobile. On September 3, 1972, at 7:30 p.m., they made such a trip and at approximately 3 a.m. on the morning of September 4, 1972, they stopped a car driven by Boles. Garrison was armed with a sheath knife while Deaver was armed with a straight razor. After talking with Boles for a time, Deaver placed the razor to Boles' throat and both the defendant and Deaver got into Boles' car. After driving for a distance in an easterly direction, they stopped the car and both men tied up Boles, blindfolded him, and placed him in the back seat of the automobile. They then proceeded in the direction of a cabin owned by Garrison's parents in a rural area of Washington County. Upon their arrival in the area, Carrison, who was driving, stopped the car; he contends that he got out of the car to urinate while Deaver removed Boles from the automobile. Garrison returned to the car, cleaned up some dirt that had gotten on the seat, and after Deaver returned without Boles, drove back to Portland. Deaver had obtained Boles' wallet, watch, money, belt and a ring.
The afternoon of September 4, 1972, Garrison and Deaver left Portland in the car they had stolen from Boles and proceeded down the freeway toward Salem. During the course of this trip they were stopped by a state policeman after a highspeed chase. Garrison, who was driving the car, presented Boles' wallet and claimed that Boles had loaned him the automobile. The policeman gave Garrison the proper Miranda 1 warnings at the scene. Deaver was released, but Garrison was detained by the officer and was transported to the Marion County jail; the car was impounded.
On September 4, 1972, at 8:35 p.m., defendant was again questioned for a short time by the police about the automobile and the circumstances under which he had obtained it. Again, Miranda warnings were given.
Deaver returned to Portland and, around six or seven that evening, he gave Boles' watch and belt to a neighbor in his apartment building to conceal. There was testimony that during this transaction he told the neighbor that he and Garrison had taken Boles out in the country and had strangled him. He repeated this statement to another neighbor later in the evening while they were going downtown with the stolen watch in an effort to sell it to raise bail money for Garrison.
At 5 a.m. on September 5, 1972, two officers from the Multnomah County Sheriff's Department came to the Marion County jail to further question Garrison. They first gave him an abbreviated Miranda warning:
Defendant repeated his original statement that he had met Boles in Portland and that Boles had loaned him the car for the day. The officers then confronted Garrison with Boles' ring which had been found upon his (Garrison's) person. Garrison contended that Boles must have given it to him. The following pertinent colloquy then transpired:
The officers continued to question the defendant about the car and ring without obtaining incriminating admissions until about 5:25 a.m. when the defendant again requested the presence of an attorney. The officers then terminated the interrogartion. Twelve minutes later, however, the tape was resumed, Miranda warnings were given and Garrison indicated that he wanted to make a statement. He then implicated himself in the robbery and transportation of Boles but denied any involvement in the actual killing, although he did acknowledge that he knew that Boles had been strangled.
While testimony differs as to what occurred during the twelve minute gap, it appears from the record that the officers, at least to a limited extent, continued their questioning of Garrison. It was only when Garrison was led to believe that Deaver had disappeared that he started to talk.
At the conclusion of Garrison's statement at 5:55 a.m., he was asked by the officers about his earlier request for an attorney:
At the conclusion of this interview, defendant was first taken to Multnomah County and then, in the company of the officers who had interrogated him in Marion County as well as other police officials, he directed them to the scene where the body of Boles was ultimately found. A video tape and audio...
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