Oregonian, The (Portland, OR)

May 3, 1991

DEFENSE CLAIMS EVIDENCE TRAMPLED

Author: PHIL MANZANO and JOHN SNELL - of The Oregonian staff

Summary: Attorneys for Frank E. Gable focus on the grassy area near where Michael Francke was murdered

Defense attorneys tried to show Thursday that police and paramedics literally may have trampled important evidence when they arrived at the Michael Francke death scene because they didn't secure the area between the dead corrections director's body and his car.

The testimony came during cross-examination of state witnesses in the second day of the aggravated murder trial of Frank E. Gable.

Defense attorney Robert Abel asked a series of police witnesses if they had walked through a grassy area between Francke's body and his car, an area where the killer may have left footprints or other evidence. Prosecutors contend that Francke was fatally stabbed at his car during a robbery.

In other testimony, the day-to-day supervisor of the Oregon State Police task force investigating Francke's death, Sgt. Karl Nelson, testified Thursday that he made the first positive identification of the body, kicking off the most extensive -- and expensive -- murder investigation in Oregon history.

Gable, 31, is on trial in Marion County Circuit Court for the Jan. 17, 1989, killing of Francke, who was director of the Oregon Department of Corrections. If convicted of aggravated murder, Gable could face the death penalty.

The prosecution believes that Francke was at his car about 7 p.m. when he was stabbed in the heart by Gable, who had been rifling through the vehicle, looking for something to steal.

Prosecutors believe Francke was mortally wounded but able to walk more than 90 feet back to the Corrections Department headquarters, located in what is known as the Dome Building.

Francke then bled to death on a porch while trying to get back inside, they say.

Prosecutors have been calling witnesses in apparent chronological order, beginning with the Oregon State Hospital security guard who discovered Francke's body about 12:40 a.m. Jan. 18. on the north portico of the Dome Building, located on the grounds of the Oregon State Hospital.

The Salem police officers who first arrived on the scene were called to testify Thursday morning.

Officer Dennis Fischer told jurors he arrived at the Dome Building at 12:49 a.m. Jan. 18. He said he walked up to Francke's body, saw that he appeared to be dead, then backed off the porch.

Fischer said he allowed one Salem Fire Department paramedic to check Francke's pulse, and when it was clear Francke was dead, he went back to his patrol car and used crime-scene tape to cordon off the area at the base of the porch.

During cross-examination, Fischer told Abel he had walked across the grassy area between the porch and the car, because at first he didn't know the car was Francke's or that it might be involved in the killing.

The grassy area was the focal point of defense cross-examination Thursday morning, as Abel tried to show that footprints or other physical evidence might have been obliterated by the people assigned to protect the scene of the crime.

Salem Police Sgt. Gary Michael told jurors he arrived at the Corrections Department and looked over the porch where Francke's body lay. He noticed that a window pane in the door on the north portico had been broken out and ordered that the entire building be secured so police could search to see if there were any other signs of forced entry to the building.

Michael said the secured area was expanded again when police learned that the only car left in the building's circular parking area belonged to Francke. The area cordonned off eventually was expanded to include the grounds.

Securing the area means keeping the public out and making certain that as few people as possible enter so evidence isn't disturbed.

``Did you believe this area -- the grassy area -- to be of critical importance?'' Abel asked Michael.

Michael agreed that it was.

``Would you agree that one of the things that could destroy evidence would be people tramping back and forth?''

``I'd agree,'' Michael answered.

Under questioning from Marion County Deputy District Attorney Thomas C. Bostwick, however, those who first arrived said they were hampered by dim light and by not being able to see the body unless they walked up the 10 steps that lead to Francke's body at the end of a long porch.

The officers also testified they did not touch the body and did not allow anyone to approach the body except for one paramedic.

Salem paramedic Tommy R. Newberry testified that he determined that Francke was dead by touching his wrist and by reaching into Francke's shirt and feeling his chest.

Newberry said Francke appeared lifeless to him when he first approached the body, and that when he touched Francke's wrist to feel for a pulse, he noticed that the man's hands were cold.

Newberry said Francke wasn't breathing and had no discernable pulse, but the paramedic added that he made a split second decision to reach inside Francke's shirt and feel for any body warmth on his chest.

Bostwick asked Newberry why he made the second check.

``It was January,'' Newberry replied. ``His hands and face would be cold as a matter of course.''

Abel asked Newberry whether he had any training in preserving crime-scene evidence, and the paramedic told him he'd taken a course in it while being trained as a reserve sheriff's deputy in Yamhill County.

Abel asked Newberry what areas he would have considered to be important to preserve. Newberry answered that he would have secured only the porch and not the grassy area nearby, considering what was known to police officers who arrived first.

In other cross-examinations, Abel asked those who saw Francke's body on the portico whether they noticed a pager attached to his belt. Several said they did.

Before the body was found, Francke was paged by co-workers who found his car in the parking circle with its door open about 7:20 p.m. The workers were concerned enough to go back in the building, call other corrections officials and notify security.

A security guard testified Wednesday that he made a cursory search of the grounds for Francke before midnight but found nothing. He said he didn't hear the sound of a pager going off at any time.

Under the prosecution theory of the killing, Francke was dead and on the porch by the time he was paged. Testimony so far, however, hasn't shown whether Francke's pager was turned on that night, or if it were was in a silent ``vibrator'' mode that wouldn't have been overheard by anyone conducting the early searches for him.

Because the killing occurred on state property, Salem city police called the Oregon State Police to respond to the scene shortly after 1 a.m., after Francke's body had been found.

State Police Sgt. Karl Nelson, who said he had met Francke a year earlier, testified he was notified at home about 1:30 a.m. about the killing.

When he arrived at the Dome Building and viewed the body, Nelson was the first person to be able to say for sure it was Francke. He immediately got the ball rolling, and called the State Police command center to notify the state police crime lab, district attorney's office, medical examiner and state police chain of command.

``Did you identify the body?'' Bostwick asked.

``Yes, I recognized him as Mr. Michael Francke,'' Nelson said.

Nelson said he also ordered the secure perimeter of the crime scene expanded, ultimately encompassing about a city block around the Dome Building. Nelson said the crime scene was gradually expanded during the early morning hours as information was developed about what happened to Francke.

In addition, Nelson also began preparing assignments to state police detectives, such as sending one to Francke's home and sending others to find out who worked in the building and to retrace Francke's last hours.

State police also testified they searched the grounds of the Dome Building later that morning using a line of officers walking the grounds abreast to look for a weapon or anything unusual.

Nothing was found.

The next day, a Marion County search and rescue Explorer post was asked to search the grounds in and around the Dome Building for a one-inch wide ``stabbing weapon.''

Jerry Blaylock, a deputy sheriff who coordinates the Scout group, said the Explorers searched the grassy area in front of the portico shoulder-to-shoulder, on their hands and knees, using their fingers to comb through the grass.