State v. Garrison

Decision Date11 March 1974
PartiesSTATE of Oregon, Respondent, v. Mark Andrew GARRISON, Appellant.
CourtOregon 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.

FOLEY, Judge.

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:

OFFICER: 'Mark, you have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney; the right to have one present when we're talking with you. If you give up these rights, a--, we'd like to talk with you at this time. Do you understand these rights?'

GARRISON: 'Yes, I do.'

OFFICER: 'With these in mind, do you want to talk to us?'

GARRISON: 'All right.'

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:

OFFICER: '* * * Now, you say he's never given you anything?'

GARRISON: 'Well--'

OFFICER: 'This (the ring) is going to put you in jail. Now, you got a, you got a chance right now to come clean, to cough up and tell us where we're going to find him. That's done it to you, whether it takes us a year to find him, two years, or whenever, that ring did it to you.'

GARRISON: 'Why, I have no idea where he's at.'

OFFICER: 'How'd you get that ring from him?'

GARRISON: 'How? That ring--he must have given it to me 'cuz I never received--'

OFFICER: 'Oh, now look, Mark, okay, don't start this. You just got through--I went through it four or five times with you. You've never received any property from him other than the car keys, the car, his billfold with--'

GARRISON: 'That is the first time I'd been asked if I'd ever received any other property prior or on yesterday's date--when, when you gentlemen just asked me.'

OFFICER: 'Hey, why don't we just quit beating around the bush? You've had it; you're caught; the game's up; it's over. It's--just the only thing from here on out, make it easy on yourself. Go the easy way; go the right way, because we're going to put you on the polygraph; we're going to find out everything you told us, right and wrong, and we know more than we're even telling you. But don't take the hook all by yourself. If Dan was in on it, 'cuz we haven't talked with Dan, I'll level with you on that. We've talked to Diane; we've talked to Scott; we've talked to a lot of people. Why do you think it took us until four o'clock or five o'clock in the morning to get to you? Because we came down here armed with some information and know what we're doing and what we're talking about. Now, look at it this way. The jig's up; make it easy on us; make it easier on the boy's family because that boy's family are the ones that are really suffering. Make it easier on some other people and make your own conscience clear and easy, because it's done. It's over. Am I right?'

GARRISON: 'About what?'

OFFICER: 'About it being over and making it easier on yourself.'

GARRISON: 'I'd like the presence of a public lawyer then, because I'm going to get some things straight here.'

OFFICER: 'Okay. Is there anything you want to straighten with us first?'

GARRISON : 'No, there isn't.'

OFFICER : 'We'll get you a lawyer. There's no problem there, Mark, but we want to know where the boy's at because we don't know--' GARRISON: 'Where Dan's at?

OFFICER: 'Yeah.'

GARRISON: 'I have no idea where Dan is at.'

OFFICER: 'We think you do.'

GARRISON: 'I don't.'

OFFICER: 'Like I say, it's going to come falling harder because as soon as --all we got to do is find that boy and, like I say, that puts the noose around your neck. We won't need a confession. We won't need nothing! Nothing! You've had it! But we want--we've got a lot of manpower working here on this case and we've got some pretty upset folks. We got some people that are ninety years old who could even die over this case because it's a, it's a nephew, a close nephew, a very close nephew. * * *' (Emphasis supplied.)

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:

OFFICER: 'Okay. Okay. For the record, Mark,'

GARRISON: 'Mm-hm.'

OFFICER: 'You will be prosecuted for your part in this incident.'

GARRISON: 'Yes, I know.'

OFFICER: 'Will you be willing to testify as to Dan Deaver's part in the crime?'

GARRISON: 'Yes, I will, as state's material witness.'

OFFICER: 'Yeah. Now, just for one other thing I want to mention here. Earlier in this transcribed, transcription here of this tape recording, you indicated that you did want to see an attorney--'

GARRISON: 'Mm-hm.'

OFFICER: '--and then you did change your mind. Now a--'

GARRISON: 'I would still like to see an attorney.'

OFFICER: 'We told you you could see an attorney but, what I'm getting at, you did proceed with your testimony to us and it was not because you were coerced or promised--'

GARRISON: 'No.'

OFFICER: '--anything.'

GARRISON: 'It was in a voluntary manner.'

OFFICER: 'Right. You did decide you wanted to get this off your shoulder and straighten things out.'

GARRISON: 'Well, I was advised by you two officers that it would be the best thing.'

OFFICER: 'Right, but you've been made no promises, no threats.'

GARRISON: 'No, none at all.'

OFFICER: 'No rubber hoses beating on you--'

GARRISON: 'No.'

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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