Harger v. State

Decision Date28 February 1983
Docket NumberNo. F-81-486,F-81-486
Citation665 P.2d 827,1983 OK CR 30
PartiesGary Dean HARGER, Appellant, v. The STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma


Gary Dean Harger was convicted in the District Court of Garfield County of Murder in the First Degree, and sentenced to life imprisonment.

Evidence at trial showed that on April 12, 1980, the appellant strangled his ex-wife, Cynthia Harger. With the help of his brother he drove her car to a bar and left it there to give the impression that she had disappeared from there. The two men then drove to an oil field location and unsuccessfully attempted to bury the body. The next day, the appellant disposed of the body by placing it in a trash pit by an oil well. Cement blocks were secured by rope to the deceased's ankles and neck to prevent her corpse from rising to the surface and being discovered.


It is initially asserted the trial court erred in ruling that statements made by the appellant were voluntary and therefore admissible into evidence. These statements led to the recovery of his wife's body. The principal argument is that the statements were induced by a promise they would not be used against the appellant at trial.

A confession will not be admitted into evidence in a criminal trial unless it is found to be voluntarily given. The use of a defendant's confession obtained by coercion, whether physical or mental, is forbidden by the Fourteenth Amendment. The admission in evidence of such confession over objection vitiates the judgment of conviction. Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958).

The record shows that during questioning, with counsel present, and after being fully advised of his Miranda rights, the appellant was asked if he would divulge the location of the body so that the victim could receive a "decent burial." When the sheriff was informed as to the general location, the appellant was asked to be more specific in his directions. He then drew a map showing where the body had been placed. Before turning the map over to the sheriff, appellant's attorney asked, "You won't use this against him will you?" The sheriff then responded, "I'll give it back to him." The map was subsequently returned to the appellant's attorney, but the evidence received pursuant to the information given to the investigating officer was used at trial.

Appellant relies on Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), for the proposition that an inadmissible confession renders all evidence received pursuant to that confession inadmissible. In Brewer, after the defendant was arrested and was being transported to another location, a police detective, knowing that the defendant was deeply religious and an escapee from a mental hospital, exerted psychological pressure on him to disclose the location of the victim's body. The detective persuaded the defendant that the victim's parents were entitled to a Christian burial for the little girl, who had been taken away on Christmas Eve.

Brewer, however, is readily distinguishable from the case at bar; the Supreme Court there held the confession to be involuntary due to the violation of the defendant's right to counsel. In the present case, legal counsel was present during questioning and actually handed the map to the sheriff.

The question of whether a confession is the product of a free will must be answered on the facts of each case. No single fact is dispositive. Brown v. Illinois, 422 U.S. 599, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). That the sheriff asked the appellant to divulge the body's location so that the victim could be buried is the only parallel with Brewer, supra, and that alone is not determinative. There is no indication that the appellant's will was overborne. The record shows that the appellant made his statements under circumstances free from coercion or threats, lengthy interrogation, or prolonged isolation from family or friends.

With counsel present, he voluntarily told Sheriff Pickle that his wife's corpse was in the Waukomis area. We are not persuaded by the argument that the "promise" not to use in evidence the map which he later drew induced the appellant to confess. To the contrary, the facts on the record indicate that the appellant agreed to cooperate and drew the map after he had already divulged the general location of the body and before there was any discussion between his attorney and the sheriff about its use in evidence. This, at the very least, shows that there had been no promise or inducement extended before-hand. And, too, it is significant that the suggestion that the map not be used in evidence came from his own counsel, with the sheriff's response being merely that he would give it back.

We are not here to determine the enforceability of, or what it was that the parties intended by this "agreement," if one at all. Rather our task is to determine whether the appellant's Fifth Amendment right against self-incrimination was violated. The totality of the circumstances and the sequence of events convince us that the map and the evidence derived therefrom were not illegally procured. We find that the statements were the product of the appellant's free and rational choice, made after...

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5 cases
  • Davis v. State
    • United States
    • Oklahoma Supreme Court
    • October 27, 2005
    ...and Sims. See Chatham v. State, 1986 OK CR 2, ¶ 5, 712 P.2d 69, 71; Fogle v. State, 1985 OK CR 50, ¶ 5, 700 P.2d 208, 210; Harger v. State, 1983 OK CR 30, ¶ 11, 665 P.2d 827, 830. Because the trial court's ruling complied with Jackson and Sims, Davis cannot show that trial and appellate cou......
  • Davis v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • December 14, 1999
    ...of a defendant's statement, OUJI-CR 2d, 9-12 (1996), however, the error was harmless considering the entire record. Harger v. State, 1983 OK CR 30, 665 P.2d 827, 830, cert. denied, 464 U.S. 837, 104 S.Ct. 126, 78 L.Ed.2d 123 (1985). We find in proposition six that Davis was not denied his r......
  • Hall v. State, F-83-576
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • April 1, 1985
    ...value and this decision is a basic judicial determination of relevance. Chaney v. State, 612 P.2d 269 (Okl.Cr.1980); Harger v. State, 665 P.2d 827 (Okl.Cr.1983). The admissibility of photographs lies within the sound discretion of the trial court. Stafford v. State, 665 P.2d 1205 (Okl.Cr.19......
  • Fogle v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • May 8, 1985
    ...v. Denno. It is unmistakably clear from the record that the trial judge found the confession was voluntarily made. In Harger v. State, 665 P.2d 827 (Okl.Cr.1983), we held the trial court's ruling during the course of the preliminary hearing that the appellant's confession and resulting evid......
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