Gable v. State

• Decision Date: 18 January 2006
• Docket Number: 95C-12041; A113425.
• Citation: 203 Or. App. 710,126 P.3d 739
• Parties: Frank Edward GABLE, Appellant, v. STATE of Oregon, Respondent.
• Court: Oregon Supreme Court

126 P.3d 739

203 Or. App. 710

Frank Edward GABLE, Appellant, v. STATE of Oregon, Respondent.

95C-12041; A113425.

Court of Appeals of Oregon.

Argued and Submitted June 28, 2005.

Decided January 18, 2006.

David J. Celuch argued the cause and filed the brief for appellant.

Carolyn Alexander, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before HASELTON, Presiding Judge, and BREWER, Chief Judge, and ORTEGA, Judge.

HASELTON, P.J.

Petitioner was convicted in 1991 on six counts of aggravated murder and one count of murder and sentenced to life imprisonment without the possibility of parole. His conviction and sentence were affirmed on direct appeal. State v. Gable, 127 Or.App. 320, 873 P.2d 351, rev. den., 319 Or. 274, 877 P.2d 1202 (1994). He filed a petition for post-conviction relief in 1995, and the post-conviction trial was held in May 2000. The post-conviction court denied relief, making extensive findings of fact and conclusions of law. On appeal, petitioner contends that the post-conviction court erred in denying relief, raising six assignments of error. As explained below, we reject all but one of petitioner's assignments and remand for further proceedings.

On appeal, we are bound by the post-conviction court's factual findings to the extent that they are supported by evidence in the record. Cunningham v. Thompson, 186 Or.App. 221, 226, 62 P.3d 823, adh'd to as modified on recons., 188 Or.App. 289, 71 P.3d 110 (2003), rev. den., 337 Or. 327, 99 P.3d 290 (2004). The facts pertinent to our disposition of this appeal are drawn from the post-conviction court's extensive factual findings and are supported by evidence in the record.

Shortly after midnight on January 18, 1989, Michael Francke, the Director of the Oregon Department of Corrections, was found stabbed to death outside the administrative offices of the Department of Corrections at the Dome Building in Salem. Francke was last seen alive by coworkers at about 6:45 p.m. on January 17 at the Dome Building shortly after a meeting ended.

Cappie "Shorty" Harden, an acquaintance of petitioner, testified that, between 6:30 and 7:00 p.m. on January 17, he went to the parking lot of the Dome Building to pick up Jodie Swearingen. He saw a light come on in a car in the lot and recognized petitioner getting into the car. According to Harden, a man approached the car and yelled, "Hey, what are you doing in my car?" Petitioner then got out of the car and stabbed the man in the chest. Harden further testified that he had seen petitioner earlier that day carrying a knife in his waistband.

Swearingen testified that she was not on the grounds of the Dome Building at the time of the murder, did not see petitioner burglarizing Francke's car, and did not witness the murder. On cross-examination, she admitted that she had previously told a number of individuals, as well as the Marion County Grand Jury, that she and Harden had seen petitioner murder Francke. Earle Childers, another acquaintance of petitioner, testified that he also saw petitioner near the Dome Building between 6:30 and 7:00 p.m. on January 17.

Between 7:02 and 7:05 p.m., a maintenance worker left the Dome Building and, as he walked toward the parking lot, heard a grunting sound, as if "somebody had their breath knocked out." He saw two men facing each other and saw one man turn and walk up the steps to the Dome Building while the other man ran in the opposite direction and crossed the street. The maintenance worker's description of the man who ran and crossed the street matched petitioner.

At approximately 7:15 p.m., two workers who were leaving the Dome Building saw that the dome light was on in Francke's car, which was parked in his parking space outside the Dome Building, and that the driver's door was open. They closed the car door, checked Francke's office and found it dark, and tried to page Francke but received no answer. They then alerted security. A security guard checked the area shortly thereafter but found nothing. The guard did not check the North Portico area of the Dome Building. Two other corrections officials were notified and also checked the area at approximately 8:20 p.m.; they also found nothing, but, like the security guard, they did not check the North Portico area.

Between 8:30 and 10:30 that evening, petitioner went to Mark Gesner's residence and asked him to get rid of something for him. Petitioner gave Gesner a large plastic bag tied at the top. Gesner took the bag to the Willamette River, put rocks inside it, and threw it in. He believed that the bag contained some type of cloth as well as a cylindrical object.

Shortly after midnight in the early hours of January 18, a security guard discovered Francke's body on the North Portico of the Dome Building. Francke had been stabbed. Francke's blood was found on the sidewalk leading to the North Portico as well as on the stairs. Analysis of the pattern of bloodstains and other evidence indicated that Francke, after being stabbed, had moved up the stairs from the sidewalk and attempted to enter the Dome Building through the North Portico. However, the North Portico door was malfunctioning, and Francke died outside that door. There were no signs of a struggle.

On the morning of January 18, petitioner told Linda Perkins that he "fucked up big time this time" and that she would "be reading about it in the papers." That evening, petitioner, in the course of conducting a drug deal and discussing the Francke murder with John Kevin Walker, told Walker that "I stuck him." Petitioner then told Walker, "Don't tell on me, Kevin, or I'll have to kill you and kill your family."

Soon after the murder, petitioner told Childers to forget that he had seen petitioner on the day of the murder. Several months later, petitioner told Childers that he had been burglarizing Francke's car, had been caught by Francke, and had struck him because petitioner, who was on parole, did not want to go back to prison.

Several months after the murder, petitioner also told David Walsh that a particular knife was the one that petitioner had used to kill Francke. Petitioner stated that he had been "jockey-boxing" the car when Francke had approached and that petitioner had stabbed Francke repeatedly. Petitioner told Walsh that, if he said anything, petitioner would kill him and his family.

Petitioner talked to various police officers in various contexts in the summer and fall of 1989, both before and after he became a suspect in the Francke murder. Petitioner stated on several occasions that he had been at the Dome Building on the day of the murder; once, petitioner said that he wanted to talk about the investigation with state police. In September 1989, petitioner was questioned specifically about the murder by Oregon State Police officers. Petitioner suggested that he thought he was being questioned because he had jokingly told his wife that he had killed Francke—and that, if he had killed Francke, it would make him a big man in prison. Petitioner spoke with one of the same officers the next day and stated that he did not kill Francke. In the same conversation, however, petitioner also told the officer that part of his brain was telling him, "you did it," but he knew he did not do it. He later added, "Well, then there are only two people who know Francke—yeah, me and God."

In April 1990, petitioner was indicted for the Francke murder and charged with six counts of aggravated murder and one count of murder. After petitioner was arrested, an officer told him that a witness had placed him at the scene, and petitioner responded, "Oh, Earle told you that, didn't he?" Later the same day, when another officer told petitioner, "we got the killer sitting right here," petitioner replied, "Maybe so, maybe not." When asked, "You're going to take this to the grave with you, aren't you?" petitioner replied, "You bet I am." The following day, petitioner told another officer, "I might have been driving by that night and Jodie and Shorty saw me."

In March 1991, petitioner's criminal trial began. Petitioner's criminal defense counsel were Robert Abel and John Storkel. On March 31, 1991, petitioner sent a letter to the trial court in which he complained about his lawyers and indicated that he wanted a continuance. The court informed petitioner that he needed to work through his lawyers for matters such as requests for continuance. The guilt phase of petitioner's trial, which was the subject of intense public interest, occurred over two months. On June 27 1991, the jury returned its verdict, finding petitioner guilty on all counts.

On July 1, shortly before the penalty phase of the trial began, petitioner sent another letter to the trial court. The court had a brief discussion on the record with petitioner concerning that letter. The court decided that the letter should be made part of the record but sealed until after the penalty phase was completed. In that letter, petitioner complained that his attorneys were not professionally competent and, particularly, that they had failed to prepare him to testify, had failed to examine and cross-examine witnesses effectively, and had failed to obtain adequate discovery. Petitioner further asserted that he had smelled alcohol on Abel's breath "numerous times."

The penalty phase of the trial began on July 2, 1991. The jury, at the request of defense counsel, was instructed on three sentencing options: the death penalty, life imprisonment without possibility of parole ("true life"), and life imprisonment with possibility of parole. On July 11, 1991, the jury concluded its deliberations and determined that petitioner should not be subjected to the death penalty, but also should not ever be eligible for parole. The trial court thereafter sentenced petitioner to life imprisonment without the possibility of parole. As...