State v. Link

• Citation: 162 P.3d 1038,214 Or. App. 100
• Decision Date: 11 July 2007
• Docket Number: A123223.,01FE0371AB.
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Justin Alan LINK, Defendant-Appellant.
• Court: Court of Appeals of Oregon

162 P.3d 1038

214 Or. App. 100

STATE of Oregon, Plaintiff-Respondent, v. Justin Alan LINK, Defendant-Appellant.

01FE0371AB.

A123223.

Court of Appeals of Oregon.

Submitted on Record and Briefs November 30, 2006.

Decided July 11, 2007.

Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, Legal Services Division, and Susan F. Drake, Senior Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Kaye E. McDonald, Senior Assistant Attorney General, filed the brief for respondent.

Before LANDAU, Presiding Judge, and SCHUMAN and ORTEGA, Judges.

SCHUMAN, J.

Defendant appeals from his convictions for numerous crimes — aggravated murder, conspiracy to commit aggravated murder, attempted murder, assault, kidnapping, robbery, burglary, and theft — related to events occurring in March 2001, when he and four of his friends, later his codefendants, entered the Deschutes County house belonging to the mother of one of the friends, vandalized it while they waited for her to come home from work, beat her when she returned and then shot her to death, stole some of her property, stole her car, and fled to Canada, where they were detained and apprehended by Canadian authorities on the Canadian side of the border and later turned over to Oregon authorities. Defendant assigns error to the court's denial of his motion for a judgment of acquittal and its subsequent guilty verdict on three counts of aggravated murder, its denial of his motion to suppress evidence assertedly derived from a violation of the extradition treaty between the United States and Canada, and its failure to merge certain of the convictions. As the state correctly concedes, the court erred in not merging the convictions as defendant argues. We reject defendant's other assignments of error. Therefore, we vacate defendant's sentences, remand for merger and resentencing, and otherwise affirm.

The facts, stated in the light most favorable to the state, State v. Cervantes, 319 Or. 121, 125, 873 P.2d 316 (1994), are as follows. In March 2001, defendant and his friend Adam Thomas, the son of the victim in this case, were living in a motel in Deschutes County. Thomas had recently moved out of his mother's house because he was not getting along with her, due in part to her antipathy toward defendant. At some time during the morning of March 26, 2001, defendant, then 17 years old, along with Thomas and three other friends — Summers, age 15; Koch, age 15; and Karle, age 16 — entered the victim's house while she was at work. The five friends had decided to drive Koch's mother's Cadillac (which Koch had taken from her and not returned) to Canada, and they had stopped at the victim's house to shower, get food, and steal valuables.

Shortly after they arrived, defendant and two of his friends decided to make a trip to the store to buy cigarettes. As they were about to leave, defendant handed another one of his friends, Karle, a .308 rifle — stolen earlier from a shop owned by Thomas's father and later used to kill the victim — and told her to shoot anybody who might arrive during the errand. When Karle asked who that might be, defendant named the victim. However, the errand never took place; nobody could find the keys to the Cadillac in which the friends had arrived. At defendant's suggestion, they ransacked the house looking for the keys, but to no avail. At that point, they decided to wait for the victim to return, knock her out, and go to Canada in her other car.

Defendant, however, told the others that merely knocking the victim unconscious and tying her up would not be sufficient; rather, they had to kill her so that she could not have them apprehended. As the discussion continued, the five friends suggested various ways to accomplish the murder: beating the victim to death with empty wine bottles, injecting her with bleach, setting the house on fire with her inside, and electrocuting her by immersing her in the bathtub and then also immersing plugged-in appliances. Defendant told them, however, that, if all else failed, they should shoot her.

As the late morning and afternoon passed, defendant instructed his friends how they should go about setting up the house for the planned murder. Wine bottles were emptied; a hypodermic needle was filled with bleach; the bathtub was filled and electrical cords brought into the bathroom and connected to a hair dryer and radio. Shortly before the victim's expected return, two of the codefendants stationed themselves as lookouts so they could alert the others to the victim's approach; two stationed themselves where they could hit her when she entered; and defendant, telling the others that he could not be seen in the house, stationed himself outside, where he stayed in contact with the others by cellphone. At one point, he telephoned Koch and delivered what Koch later described as a "pep talk," encouraging him to carry out their plans.

When the victim arrived, Thomas and Koch hit her between four and six times with the empty wine bottles and, when she fell to the ground, kicked her. Despite the attack, however, she was able to stand and get to the back porch. From his vantage point outside, defendant saw her, and asked Thomas and Koch, who by now were also on the porch, "Why isn't she dead yet? Get her back in the house. Shoot her. Get the gun." As Koch went to retrieve the rifle, defendant told Thomas that the victim looked "really bad" and that they should put her out of her misery. After Thomas, Summers, and Karle either refused or were unable to shoot the victim, Koch did so himself. Defendant remained outside.

After the murder, the five young people took a cordless phone, alcohol, guns, jewelry, and money from the residence, transferred their belongings from the Cadillac to the victim's Honda, and drove away.

At around 9:30 p.m. that evening, police, having discovered the victim's body, placed an "attempt to locate" message for defendant and the four codefendants on state and national law enforcement computer systems. By early the next morning, Deschutes County authorities had issued a temporary felony warrant for the arrest of all five and entered the warrant into the same state and national computer systems.

The five fugitives reached the Canadian customs station at a point of entry on the Washington-British Columbia border at approximately 12:30 p.m. on March 27, 2001, the day after the murder. They were routinely stopped at the station within Canadian territory. The customs inspector noticed that the driver, Thomas, appeared nervous, as did all of the passengers; that only Thomas had a driver's license with him; and that two of the passengers appeared quite young. He detained all five and then ran Thomas's name through the computer. That led to the discovery that Thomas and four other unnamed persons were suspects in a murder. He took the youths to five separate rooms, where they were handcuffed.

The Canadian authorities then put defendant under arrest and read him the Canadian equivalent of Miranda warnings, called "charter rights" and "cautions":

"You are not obligated to say anything. You have nothing to hope from any promise or favor and nothing to fear from any threat, whether or not you say anything. Anything you do say may be used as evidence. You have the right to retain and instruct counsel without delay. You have the right to obtain legal advice without charge from duty counsel."

Defendant did not request an attorney. The Canadian officials did not interrogate or interview him except to ascertain his real name. At approximately 2:00 p.m., defendant and the four codefendants were walked over to the United States Customs building on the United States side of the border. Defendant was kept at the United States customs station until approximately 5:00 p.m., when Whatcom County Sheriff's Office detectives picked him up, arrested him, advised him of his right to counsel, and transported him to the Whatcom County Sheriff's Department.

Members of the Deschutes County Major Crimes Team arrived at the Whatcom County Sheriff's Department around 8:30 p.m. A detective with the Deschutes County Sheriff's office advised defendant of his Miranda rights and then began interrogating him about his role in the murder. He was ultimately tried and convicted of five counts of aggravated murder, ORS 163.095; five counts of conspiracy to commit aggravated murder, ORS 161.450; two counts of attempted murder, ORS 161.405; one count of assault in the second degree, ORS 163.175; one count of kidnapping in the first degree, ORS 163.235; three counts of robbery in the first degree, ORS 164.415; three counts of burglary in the first degree, ORS 164.225; and two counts of theft in the first degree, ORS 164.055. At sentencing, the trial court agreed with defendant's arguments that various counts should merge, but entered a judgment showing that they merged only "for sentencing." This appeal ensued.

We begin with defendant's fifth assignment of error, because it is the only one that would have an impact on all of defendant's convictions and, therefore, all of his other assignments of error. In that assignment, defendant argues that the court erred in denying his motion to suppress statements and other evidence that he claims derived from a violation of the extradition treaty between Canada and the United States. The relevant Articles of the treaty are:

"ARTICLE 1

"Each Contracting Party agrees to extradite to the other, in the circumstances and subject to the conditions described in this Treaty, persons found in its territory who have been charged with, or convicted of, any of the offenses covered by Article 2 of this Treaty [including murder] committed within the territory of the other * * *.

"* * * * *

"ARTICLE 8

"The determination that extradition should or should not be granted shall be made in...