State v. Shipley

• Decision Date: 10 October 1962
• Citation: 232 Or. 354,375 P.2d 237
• Parties: STATE of Oregon, Respondent, v. Larry West SHIPLEY, Appellant.
• Court: Oregon Supreme Court

Page 237

375 P.2d 237

232 Or. 354

STATE of Oregon, Respondent, v. Larry West SHIPLEY, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted June 6, 1962.

Decided Oct. 10, 1962.

Eugene K. Richardson, Newport, argued the cause and submitted briefs for appellant.

A. R. McMullen, Dist. Atty., Newport, argued the cause for respondent. With him on the brief was R. P. Everhart, Deputy Dist. Atty., Newport.

Before McALLISTER, C. J., and ROSSMAN, WARNER, PERRY, SLOAN, O'CONNELL and GOODWIN, JJ.

McALLISTER, Chief Justice.

The defendant, Larry West Shipley, was convicted of murder in the first degree by a jury which did not recommend life imprisonment. The mandatory death sentence was imposed and this appeal was taken automatically pursuant to ORS 138.410-138.430.

The defendant's assignments of error are all based on his contention that there was unreasonable delay in taking him before a magistrate, and that the admissions and confessions made by defendant during such delay should have been excluded from evidence.

At about 3:45 p. m. on Tuesday, August 8, 1961, the bullet-riddled body of a 16-year old girl, Linda Stevens, was found lying on a forest path in Lincoln county, just off the highway a few miles north of Otis Junction. It appears from the evidence that Linda was a ward of the juvenile court, had been living with foster parents in McMinnville and was acquainted with the defendant Larry Shipley. Shipley was then 20 years of age, was on parole from the Oregon Correctional Institution, was living with his parents in McMinnville, and was employed as a hospital orderly.

Shipley, accompanied by his friend Glen Dixon, met Linda by prearrangement in the city park in McMinnville at about 11:45 p. m. on Sunday evening, August 6, 1961. Linda told Larry that her foster mother had heard her leave home by a window and that if she returned home she would be sent to Hillcrest, a girls' correctional school. Linda said she would not return home but intended to run away and asked Larry to help her. In response to her request the men drove her in Dixon's car into the hills behind Willamina, near a place where Linda had formerly lived with her own parents. During the trip both men had intercourse with Linda, Shipley while riding in the car and Dixon at a stop made enroute in the Eola Hills.

On the way back to McMinnville Shipley told Dixon that if Linda was found she would probably tell the police that the two men had helped her run away or had raped her. Dixon asked Shipley what they should do and Shipley said 'maybe we'd better kill her.' After further talk the men decided to return the next night and to kill Linda if she was still there. The men got back to McMinnville at about 3:45 o'clock a. m. on Monday, August 7, 1961. Shipley went to work at 7:00 o'clock a. m., and when he was through work at 3:00 p. m. was picked up by Dixon.

The men went to Dixon's home to get a shovel with which to dig a grave for Linda, and then went to a service station where Shipley bought a box of 22 shells with which to do the killing. The shells were to be used in a revolver owned by Dixon. The men next drove in Dixon's car into the Eola Hills and started to dig a grave, but after digging a while decided the ground was too hard and returned to McMinnville. They replaced a broken axle in Shipley's car and then drove in that car to the spot where they had let Linda out during the early hours of the same day. Linda, who apparently had been waiting for them, got into the car and with Shipley driving they started toward the coast. The men had decided that it would be easier to bury the body in the sand dunes along the coast and were headed toward Pacific City.

A few miles north of Otis Junction the car began to make a scraping sound and Shipley told Dixon they had better stop. Dixon directed Shipley to turn around and drive back a short distance to a turnout along the road from which a path led up the wooded hillside. Dixon told Linda that he knew of a cabin in the woods where she could stay. Dixon carrying a flashlight led the way up the path, followed by Linda who was followed in turn by Shipley. After walking a few hundred yards Shipley told Dixon to stop. Linda was facing up the hill and Shipley stepped up behind her, placed the revolver to the back of her head and pulled the trigger. Linda fell and Shipley emptied the gun by firing the rest of the shells into her head and body and then ran down the hill to the car. Shipley and Dixon returned directly to McMinnville, arriving about 10:45 p. m. Shipley dropped Dixon off at his parked car, and then went home.

Although Linda was murdered about 9:30 o'clock p. m. on Monday, August 7, 1961, her body was not found until the next day, Tuesday, August 8, at about 3:45 o'clock in the afternoon. The scene of the crime was in Lincoln county and the body was taken to Newport, the seat of that county. The body was not identified with certainty until about 9:30 o'clock that night, at which time the investigation shifted to McMinnville in Yamhill county.

At about 11:30 p. m. on Tuesday, August 8, 1961. Officer Carpenter of the Oregon State Police went to Shipley's home, asked Shipley when he had last seen Linda Stevens, told him the police were making a preliminary investigation, and asked Shipley if he would come to the office and talk to them. Shipley agreed and was taken by Officer Carpenter and a deputy sheriff to the Yamhill county courthouse in McMinnville. Glen Dixon also was taken to the courthouse in the same car. According to Shipley he arrived at the courthouse at about ten minutes before midnight.

At the courthouse Shipley waited in a room alone for about 30 minutes and then was taken by Corporal Finney of the Oregon State Police into the sheriff's private office where Corporal Finney talked to him for about 45 minutes. Thereafter Shipley was interrogated intermittently by various officers of the State Police, parole officer Dan Hyatt, and Sheriff W. L. Mekkers of Yamhill county, until about 5:50 a. m., when Shipley was put to bed in a part of the jail known as the sickbay.

Shipley, as a witness, gave a detailed chronological account of his questioning and all events that occurred during his stay at the courthouse in McMinnville. He explained his accurate knowledge of the chronology of events by saying that he had a habit of looking at his watch. ¹

After he had slept for about four hours Shipley was awakened at 9:50 a. m. and taken to the sheriff's office where he was questioned for about an hour. He then returned to his cell in the sickbay and went back to sleep. At about 11:30 a. m. Shipley was again awakened and taken to the sheriff's office. At 12:00 noon be began to give a statement to a court reporter in the presence of the sheriff and several officers. Shipley, in response to questioning, confessed that he and Dixon had killed Linda, although he insisted that Dixon had done the shooting. He was returned to his cell about 1:30 p. m., and was given lunch, consisting of a sandwich and soft drink.

About 2:00 o'clock p. m. Shipley went in a car with several officers and showed them the place in the Eola Hills where he and Dixon had started to dig the grave. Shipley was returned to his cell at about 3:30 p. m., where he remained until about 7:30 p. m. During this interval he was given supper.

At about 7:30 p. m. Shipley was taken to the office of a deputy sheriff where he was again questioned and asked to read the transcript of the statement given by him to a court reporter earlier in the day. Shipley read and initialed the first nine pages. He then stated that the remainder of the statement was inaccurate and offered to write a corrected statement for the officers. Defendant then spent the next hour and a half writing a detailed confession in which he admitted that he had personally fired the shots that killed Linda. The statement was completed and signed at about 9:30 o'clock p. m.

At about 10:00 o'clock p. m. the officers put Shipley in a car and started for Newport. Enroute Shipley showed the officers the place near Willamina to which he and Dixon had taken Linda on the night before the killing. He also pointed out to the officers the path leading from the highway on which the killing had occurred. The group arrived in Newport shortly after midnight and Shipley was arraigned before a Justice of the Peace at about 12:50 a. m. on Thursday, August 10, or about 25 hours after he had been taken for questioning to Yamhill county courthouse a few minutes before midnight on August 8th.

Defendant objected to the introduction into evidence of the admissions and confessions made by him during the period of his detention in the Yamhill county jail at McMinnville. In support of his contention that the court erred in admitting these admissions and confessions into evidence defendant relies on the rule adopted by the federal courts that a confession made during a period of illegal detention is inadmissible. McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943); Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100 (1948); Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957).

ORS 133.550 requires that 'the defendant shall in all cases be taken before a magistrate without delay.' ORS 133.610 directs the magistrate to inform the defendant 'of the charge against him and of his right to the aid of counsel before any further proceedings are had.'

There is doubt as to just when defendant was first placed under arrest and when the police first acquired sufficient information to justify charging defendant with the murder of Linda Stevens. It is conceded in the defendant's brief that it was not until about noon on August 9, 1961 'that the investigating officers had any reason to believe defendant was implicated' in the murder. Taking that view it is obvious that the defendant could and should have been taken before a...