Satter v. Solem

• Decision Date: 11 July 1990
• Docket Number: No. 16816,16816
• Citation: 458 N.W.2d 762
• Parties: Steven SATTER, Petitioner and Appellant, v. Herman SOLEM, Respondent and Appellee.
• Court: South Dakota Supreme Court

Page 762

458 N.W.2d 762

Steven SATTER, Petitioner and Appellant, v. Herman SOLEM, Respondent and Appellee.

No. 16816.

Supreme Court of South Dakota.

Argued April 24, 1990.

Decided July 11, 1990.

Michael J. Butler and Richard Braithwaite, Sioux Falls, for petitioner and appellant.

Craig M. Eichstadt, Asst. Atty. Gen., Roger A. Tellinghuisen, Atty. Gen., on brief, Pierre, for respondent and appellee.

MORGAN, Justice.

This appeal arises from a decision on the habeas corpus petition of Steven Satter (Satter) challenging the constitutionality of his conviction on two counts of murder. This court affirmed that conviction on direct appeal. State v. Satter, 90 S.D. 485, 242 N.W.2d 149 (1976) (Satter I ). The decision reversing the habeas court was filed April 20, 1988, 422 N.W.2d 425 (S.D.1988), cert. denied, --- U.S. ----, 109 S.Ct. 2432, 104 L.Ed.2d 989 (1989) (Satter II ). In that decision, a plurality voted to reverse, two justices on the basis of an involuntary confession and one on the issue of ineffective assistance of counsel. State petitioned for rehearing and it was granted, but we limited the inquiry to whether Satter's statement made on April 2, 1973, was voluntary and whether there was ineffective assistance of counsel. That opinion, reversing and remanding, was filed on January 4, 1989. Satter v. Solem, 434 N.W.2d 725 (S.D.1989), cert. denied, --- U.S. ----, 109 S.Ct. 2432, 104 L.Ed.2d 989 (1989) (Satter III ). It held that Satter's statement made on April 2, 1973, was involuntary and remanded to the habeas court for determination of the effects of this statement on his conviction in light of the "fruit of the poisonous tree doctrine" announced in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). On remand, the habeas court held an additional evidentiary hearing on April 19, 1989. Police who took Satter's April 5, 11, and 12, 1973, statements as well as law enforcement personnel who searched for the two victims' bodies testified. At the conclusion of this hearing, the habeas court entered an order denying all relief. We reverse and remand.

Much of the pertinent background surrounding the taking of Satter's confessions and the discovery of the victims' bodies is found in Satter II.

While incarcerated in the Codington County Jail because of probation violations involving area burglaries, without having given Satter Miranda warnings, petitioner was questioned by Codington County Sheriff Berg (Berg), concerning an anonymous phone tip Berg had received about the location of two bodies. Satter told the sheriff he knew about the bodies because the person who had murdered them had asked him to dispose of the bodies. He volunteered the name of the alleged murderer and the location of the bodies after, according to Satter, Berg promised their conversation was off the record. This conversation was never reduced to writing. At the habeas hearing, the sheriff did not recall having made such a promise. Prior to this interview with Berg, Satter had been interviewed on numerous occasions concerning local and out-of-state burglaries and had been Mirandized prior to each interview.

Following Satter's directions, the bodies were located and a DCI investigator was called in. Satter was given Miranda warnings at each interview thereafter. Satter agreed to a polygraph examination dealing specifically with the murders. Up to this point in time, he had not admitted committing the murders. Satter was Mirandized prior to the polygraph examination and before a post-polygraph examination interview. Satter failed the polygraph and thereafter confessed to the murder of two acquaintances, but maintained his actions were in self-defense. His confession was consistent with that theory. The written confession signed by Satter contained a paragraph offering Satter a future polygraph and a promise that the State would not object to its introduction into evidence at trial. No further polygraphs concerning the murders were offered or given.

422 N.W.2d at 426-27.

On remand, additional facts were developed concerning an independent search for the bodies made by Officer Dennis Koch (Koch), an officer with the Watertown Police Department. Koch testified that in mid-March, 1973, a friend of Satter's, Rick Schmelling (Schmelling), informed Koch that Satter had admitted to a double murder and had taken Schmelling to view the bodies.

Acting on this information, Koch accompanied Schmelling to an abandoned railroad track between Bemis, South Dakota, and Kranzburg, South Dakota in mid-March 1973. Once there, Schmelling informed Koch that it had been foggy at the time Satter had shown him the burial site and, as a result, he could not point out the precise location of the bodies. Schmelling had directed Koch to within approximately one-half mile of the bodies. On March 31, 1973, Officer Koch and Floyd LeVake (LeVake), Satter's probation officer, returned to the scene and began a search of rock piles along the abandoned railroad grade. They began at Bemis and continued in a northwesterly direction along the abandoned railroad grade. Koch and LeVake not only viewed all rock piles along the railroad grade, but actually moved rocks in an attempt to find the bodies. Though Koch and LeVake's effort proved fruitless on this day, Koch testified that they would have continued their search along the railroad grade on either April 3 or 4, 1973, and moved rocks in all of the rock piles along this railroad grade. Koch stopped his search on March 31, 1973, within one-half to three-quarters mile of the location where the bodies were found. Agent Jerry Lindberg (Lindberg) of the Division of Criminal Investigation (DCI) testified that he photographed the rock pile where the bodies were found shortly after their discovery. The photographs show that a human ear and a human skull were in plain view without moving any rocks on the rock pile. In addition to the photographic evidence, Lindberg and Koch testified that the skull and ear were visible before any rocks were removed from the pile. Additional facts will be supplied when appropriate.

Satter raises the following issues on appeal:

(1) Whether the habeas court exceeded its mandate on remand by the following:

A. holding an evidentiary hearing to allow State to introduce evidence on inevitable discovery and an independent basis for statements taken on April 5, 11, and 12, 1973;

B. making findings as to the voluntariness of Satter's April 2, 1973, statement to Sheriff Berg; and

C. ruling on the habeas court's jurisdiction on a nonconstitutional error.

(2) Whether the habeas court erred in holding that evidence gained as a result of the April 2, 1973, statement was not fruit of the poisonous tree.

(3) Whether the habeas court erred in finding that subsequent statements made after the April 2, 1973, statement were independently admissible.

(4) Whether the admission of Satter's April 2, 1973, statement to Sheriff Berg was harmless error.

Our standard of review for habeas corpus proceeding was recently set out in McCafferty v. Solem, 449 N.W.2d 590 (S.D.1989) reh'g denied (Jan. 3, 1990) (McCafferty III ).

The remedy of post-conviction habeas corpus is restricted by the provisions of SDCL 21-27-16 and the prior decisions of this court. The statutory provisions were fairly well summarized in our decision, State v. Erickson, 80 S.D. 639, 129 N.W.2d 712 (1964), wherein we pointed out that, since the remedy is in the nature of a collateral attack upon a final judgment, the scope of review in habeas corpus proceedings is limited. As we said: "habeas corpus can be used only to review (1) whether the court had jurisdiction of the crime and the person of the defendant; (2) whether the sentence was authorized by law; and (3) in certain cases, whether an incarcerated defendant has been deprived of basic constitutional rights." Id., 80 S.D. at 645, 129 N.W.2d at 715. See also Goodroad v. Solem, 406 N.W.2d 141 (S.D.1987). Habeas corpus is not a proper remedy to correct irregular procedures, rather, habeas corpus reaches only jurisdictional error. Id. 406 N.W.2d at 143; SDCL 21-27-16. For purposes of habeas corpus, constitutional violations in a criminal case deprive the trial court of jurisdiction. Goodroad, 406 N.W.2d at 143; Podoll v. Solem, 408 N.W.2d 759 (S.D.1987).... Further, we may not upset the habeas court's findings unless they are clearly erroneous. SDCL 15-6-52(a); Satter v. Solem, 422 N.W.2d 425 (S.D.1988).

Id. at 591-92.

First, we address Satter's general argument that the habeas court was not permitted to take additional evidence. Nothing in our Satter III decision restricted the habeas court from taking evidence on the issue of "fruit of the poisonous tree." In fact, we specially instructed the habeas court to consider this issue, since the court in Satter II had erroneously ruled that the April 2, 1973, statement was voluntary. Under both SDCL 21-27-14 and 21-27-14.1, ¹ the trial judge is empowered to settle the facts and hear evidence and argument. The habeas court was within its power to hold a hearing on the effect of the involuntary statement on the other evidence. See Duffey v. Duffey, 432 N.W.2d 473, 476 (Minn.Ct.App.1988) ("When trial court receives no specific directions as to how it should proceed in fulfilling the remanding court's order, the trial court has discretion in handling the course of the cause to proceed in any manner not inconsistent with the remand order."). Nothing in the Satter III opinion or our February 3, 1989, letter of instructions precluded holding a hearing.

Second, Satter claims that even if the habeas court could hold a hearing, the issue of inevitable discovery could have been litigated at earlier proceedings and was not; therefore, State is barred under the theory of res judicata. We disagree.

While it is true that the admissibility of the April 2, 1973, confession was before the trial court in Satter II, Judge Hoyt ruled that...