Judge to decide if suspectís statement in murder case is admissible in trial

By DAWN SLADE
Mille Lacs County Times
Posted 3/13/03

Roger Duane Garbow, Jr., 20, one of the three defendants accused of murdering Melvin Duane Eagle in Onamia on Jan. 5, is waiting to hear if Mille Lacs County Judge Steven Ruble will accept his motion to suppress the statement he made to law enforcement agents regarding the murder.

Garbowís attorneys, Dan Benson of St. Cloud and Barbara Rudquist of Zimmerman, argued at his omnibus hearing that Garbowís Miranda rights were violated and questioned the overall fairness in the method in which Garbowís statement was taken.

The defense had until Feb. 25 to submit briefs to the court on their behalf, while the state had until March 4 to submit its memorandum in opposition to Garbowís motion to suppress.

Many of the defendantís responses during the statement were inaudible, based on the audio and visual tapes of the defendantís statement, and the transcript.

On the tape, when the defendant was read his Miranda warning by Bureau of Criminal Apprehension (BCA) Special Agent Jon Hermann, he asks Garbow, "Do you understand each of these rights I have explained to you?"

Garbowís response is, "Yeah," according to Hermann, who had to put his ear next to the audio tape in order to hear it.

The transcript shows Garbowís response as inaudible, however, Hermann wrote in the answer as "Yeah" after listening to the tape again.

But, the conversation that took place immediately following that is where confusion sets in.

Sergeant Justin Churchill of the Mille Lacs Tribal Police Department asks Garbow if heís willing to talk with him. Garbow responded, "I donít know."

After some confusion with whether or not Garbow wanted to talk, Hermann finally told Garbow that if he wanted to talk, now would be the time.

Garbow responded with, "Sure." The defendant then went on to tell the officers what happened during the early morning hours of Jan. 5 while the three men, which includes Coleman Lee Weous, 18, and Bryan Wesley Sam, 17, both of Onamia, were drinking with Eagle.

According to Hermannís testimony and the transcript, Garbow indicated there was a fight over Sam dating Eagleís niece which resulted in a conflict between Eagle and the three men.

Eagle was knocked unconscious and the three men kicked Eagle repeatedly. Garbow told the officers that he thought Eagle was going to die, but he did not call an ambulance.

Garbowís memorandum supporting the motion to suppress his statement, states the State has failed to meet its heavy burden of showing scrupulous compliance with Miranda.

In its memorandum, the State of Minnesota says Garbow did not request counsel at any time during the interview.

It goes on to say, "Because the defendant did not clearly and unequivocally assert his right to silence, police attempted to determine his wishes and, once defendant made up his mind, defendant clearly waived his right against self-incrimination.

"Consequently, his statement should be admitted against him in trial."

Several different court cases are cited in the stateís memorandum including those related to "trickery" used in obtaining confessions.

The defendant argues that Hermann misled him by overstating evidence gained from other suspects and the impact of DNA testing on his clothing (blood).

Hermann told Garbow that he had sat down with Sam, Weous and Vicki Smith (owner of the residence where the murder took place). The defendant feels it was misleading because Sam invoked his right to remain silent.

Hermann said that he simply told Garbow that he "sat down" with the other individuals, not that they had given any confessions.

Hermannís experience in interviewing suspects versus Garbowís inexperience as a suspect is incorporated throughout the defendantís memorandum.

It includes a statement that Garbow had been roused out of bed for the interview and that he was still recovering from a long night of drinking.

The state says there is no evidence to suggest that there was anything that occurred during the course of the questioning that would make an innocent person confess.

The defense, however, states, "There is little, if any, indication during the interview, that Mr. Garbow knowingly and willingly gave up his right to remain silent, and voluntarily participated in the interview.

In conclusion, the state says, "Defendant was properly warned of his Miranda rights, waived them, and made a voluntary confession to the murder of Melvin Eagle. Consequently, his confession should be admitted and the motion to suppress should be denied."

Ruble has 90 days to respond to the briefs. The original speedy trial date was set for March 31, however, it will now likely take place this summer.