State v. Harberts

• Decision Date: 14 September 2000
• Citation: 11 P.3d 641,331 Or. 72
• Parties: STATE of Oregon, Respondent, v. Scott Dean HARBERTS, Appellant.
• Court: Oregon Supreme Court

11 P.3d 641

331 Or. 72

STATE of Oregon, Respondent, v. Scott Dean HARBERTS, Appellant.

(CC 89-0557; SC S41741)

Supreme Court of Oregon.

Argued and Submitted March 10, 1999.

Decided September 14, 2000.

Eric Cumfer, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief were Sally Avera, Public Defender, and David Groom, Deputy Public Defender.

Robert B. Rocklin, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, Virginia L. Linder, Solicitor General, and David B. Thompson, Assistant Attorney General.

Before CARSON, Chief Justice, and GILLETTE, VAN HOOMISSEN, DURHAM, LEESON, and RIGGS, Justices.¹

LEESON, J.

This is an automatic and direct review of a judgment of conviction and a sentence of death. Former ORS 163.150(1)(g) (1993), renumbered as ORS 138.012(1); ORAP 12.10(1). Defendant seeks reversal of his conviction on three counts of aggravated murder for the death of a young child. ORS 163.095; ORS 163.115. Defendant was arrested and placed in jail on July 14, 1989. His trial did not begin until July 12, 1994, nearly five years later. Under Article I, section 10, of the Oregon Constitution, the state must bring a defendant to trial "without delay." We hold that, under the circumstances of this case—five years between arrest and trial during which defendant was being held in jail solely on the pending charges, many months of unreasonable delay during that period, and both personal prejudice and prejudice to the defense caused by the five-year delay—the state violated Article I, section 10. Accordingly, we reverse the conviction, vacate the sentence of death, and remand the case to the trial court with instructions to dismiss the accusatory instrument with prejudice.

The victim in this case, a young child, lived with her father, the father's girlfriend, and the girlfriend's three young children. Defendant, a friend of the victim's father, also had lived in the house for approximately a year before the victim's death, where he was treated as a member of the family. During the evening of July 13, 1989, the victim's father purchased cocaine, and he and defendant cooked and smoked it together. Defendant, an admitted alcoholic, also consumed substantial amounts of alcohol that day and evening.

Defendant claims to have found the victim lying on the bathroom floor at approximately 3:00 a.m. on the morning of July 14, 1989, when he awakened to use the bathroom. Defendant then awakened the victim's father and the father's girlfriend. They both went to the bathroom, where they saw the victim. At defendant's urging, the father called 9-1-1. The father told the dispatcher that he was afraid that his daughter had swallowed some rubbing alcohol. While he waited for paramedics to arrive, the father hid the cocaine paraphernalia that he and defendant had used the evening before. Meanwhile, defendant and the father's girlfriend attempted to revive the victim. After the paramedics arrived, defendant continued to perform chest compressions on the victim while the paramedics attempted to administer oxygen. When the paramedics asked defendant to step aside so that they could work, he became very upset. One of the paramedics, Rawson, testified as follows:

"Q: You started to mention that a person that you ultimately have come to know was [defendant], you started to describe some of his activities immediately following your setting up the oxygen and his being asked to move aside. Could you go ahead and elaborate on that, if you would, please?

"A: Well, he several times stated things like: Don't let my baby die, and loudly. He was really agitated. And at the time I assumed he was the father, because the other—the other man and lady were just kind of standing off on the side, not really too excited. They were just standing there. They kept telling him to settle down. So I just—you know, at the time assumed that he was the father and he was quite upset, and rightfully so."

Defendant repeatedly interrupted the paramedics' work by telling them that he knew how to perform CPR and that they were doing it wrong. The victim's father testified that he "tried to help restrain [defendant] and * * * tried to calm him down." When the police arrived, the paramedics asked the police to get defendant out of the way. One of the officers told defendant to sit down in a chair and stay there. When defendant did not do so, and again tried to reach the victim, he was arrested for harassing a police officer. According to Rawson, the police arrested defendant "just to get him away from us."

The victim apparently had died sometime between 10:30 p.m. on July 13 and 1:30 a.m. on July 14, 1989. The cause of death was head trauma, smothering, or a combination of the two. She also had been raped or sodomized.

After they arrested defendant for harassment, the police took him to the Clackamas County Jail and placed him in a holding cell. Just before 6:00 a.m. on July 14, 1989, detectives told defendant that the victim was dead and began interviewing him. After defendant repeatedly had denied killing the victim, detectives asked him to take a polygraph examination, which he did. Detective Harvey, a polygraph intern, administered the examination, which lasted approximately four hours. Afterward, Harvey told defendant that she believed that he had killed the victim. Defendant responded that, although he did not remember killing the victim and could not believe that he would do something like that, if the polygraph had indicated he had killed her, he was "going along with what the polygraph said." Defendant made several other inculpatory statements, each of which referred to the results of the polygraph examination.

Defendant was indicted for murder on July 20, 1989. His trial was scheduled to begin on January 3, 1990. In November 1989, defendant moved to suppress all the inculpatory statements that he had made surrounding the administration of the polygraph examination. The trial court granted that motion on March 5, 1990. It found that defendant's blood alcohol level at the time when he made the statements was "approximately .16 to .18," that defendant had consumed cocaine, and that defendant had had "limited sleep and was fatigued" when he made the statements. The court also found that the first two-thirds of the polygraph examination were inconclusive, that Harvey had not given defendant "a complete and detailed explanation of what defendant's polygraph performance was," and that defendant probably would not have made the inculpatory statements if Harvey had not told him that the polygraph examination had led her to believe that he was the killer. The court concluded that, considering all the circumstances, defendant had not made the inculpatory statements voluntarily.

The court also found that "[a]ll statements by defendant at issue constitute polygraph evidence." Relying on State v. Lyon, 304 Or. 221, 233-34, 744 P.2d 231 (1987), and State v. Brown, 297 Or. 404, 445, 687 P.2d 751 (1984), the court held that such evidence was inadmissible as a matter of law. Finally, the trial court held that, as a factual matter, it could not "sanitize" or edit defendant's statements, because they were "inextricably linked and wedded to defendant's understanding of the results of the polygraph and to what Detective Harvey told defendant." For those reasons, the court granted defendant's motion to suppress.

After the trial court granted defendant's motion to suppress the inculpatory statements, the state announced that it planned to appeal the trial court's order.² Defendant then filed a motion for release pending the state's appeal. Defendant argued that, in light of the trial court's rulings regarding the inadmissibility of defendant's inculpatory statements, there was not sufficient evidence to support the findings under ORS 135.240³ that the proof was evident or the presumption strong that defendant was guilty. On March 5, 1990, the trial court denied defendant's motion for release. The court found "by clear and convincing evidence that the proof is evident and the presumption strong that the defendant is guilty." Accordingly, defendant remained in jail. On March 20, 1990, the state filed a notice of appeal from the trial court's suppression order.

In November 1991, the Court of Appeals reversed the trial court's suppression order. State v. Harberts, 109 Or.App. 533, 820 P.2d1366 (1991). It held that defendant had made the inculpatory statements voluntarily and that, as a matter of law, the statements could be edited to avoid any reference to the polygraph examination. Id. at 539-40, 820 P.2d 1366.

Defendant sought review by this court and obtained two extensions of time to file his petition for review. The case was argued in September 1992, and, in February 1993, this court held that defendant had made the inculpatory statements voluntarily. However, it rejected the Court of Appeals' holding that, as a matter of law, defendant's statements could be edited in a manner that would eliminate reference to the polygraph examination without changing their meaning. State v. Harberts, 315 Or. 408, 415, 848 P.2d 1187 (1993). In April 1993, this court remanded the case to the trial court for it to determine whether it could eliminate defendant's references to the polygraph examination in his inculpatory statements without altering the meaning of those statements. Id. at 419, 848 P.2d 1187.

On remand, the trial court again found that, as a factual matter, it could not edit defendant's inculpatory statements without changing their meaning, because the statements contained a "direct linkage to the polygraph. "On May 27, 1993, the court again suppressed those statements. The state filed a timely notice of appeal from the second order of suppression. The state requested three extensions of time to file its opening brief, each time explaining that the Assistant ...