Satter v. Solem

• Citation: 422 N.W.2d 425
• Decision Date: 03 June 1988
• Docket Number: No. 15731,15731
• Parties: Steven SATTER, Petitioner and Appellant, v. Herman SOLEM, Respondent and Appellee.
• Court: South Dakota Supreme Court

Page 425

422 N.W.2d 425

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

No. 15731.

Supreme Court of South Dakota.

Argued Nov. 17, 1987.

Decided April 20, 1988.

Rehearing Granted June 3, 1988.

Richard Braithwaite, Sioux Falls, for petitioner and appellant.

Janine Kern, Asst. Atty. Gen., Roger A. Tellinghuisen (on brief), Atty. Gen., Pierre, for respondent and appellee.

MORGAN, Justice.

Petitioner and appellant Steven Satter (Satter or petitioner), appeals from a judgment denying habeas corpus relief. We reverse and remand.

Satter was convicted by jury trial of two counts of murder on May 10, 1974, and was sentenced to serve two concurrent life sentences. Satter appealed that conviction, which was affirmed at 90 S.D. 485, 242 N.W.2d 149 (S.D.1976). Petitioner raises four issues on appeal.

(1) That admissions made to the sheriff without benefit of Miranda warnings were involuntary.

(2) That jury instruction No. 15 impermissibly shifted the burden of proving self-defense to the accused.

(3) That he received ineffective assistance of counsel.

(4) Satter, pro se, raises the issue of ineffective assistance of counsel, contending that Jury Instruction No. 5 was flawed because it did not contain all the elements of murder.

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. Additional facts concerning the trial will be given as needed.

We first set forth the scope of our review. Since the remedy sought is in the nature of a collateral attack upon a final judgment, the scope of review is limited. Goodroad v. Solem, 406 N.W.2d 141 (S.D.1987); Everitt v. Solem, 412 N.W.2d 119 (S.D.1987); SDCL 21-27-16.

'... [H]abeas 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.'

Goodroad, 406 N.W.2d at 144 quoting State ex rel Burns v. Erickson, 80 S.D. 639, 645, 129 N.W.2d 712, 715 (1964). See Goodroad, supra, for a general review of the habeas corpus remedy. We recognized in State ex rel Poach v. Sly, 63 S.D. 162, 257 N.W. 113 (1934), that a constitutional violation in a criminal case may deprive the trial court of jurisdiction. See, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). ' "Further, we must bear in mind that in cases such as this, the burden of proof is upon the [petitioner]." ' Goodroad at 145 citing Spirit Track v. State, 272 N.W.2d 803, 804 (S.D.1978).

Petitioner first contends that his admissions "to Sheriff Berg were inadmissible because they were involuntary." Petitioner bases involuntariness on three grounds. First, a violation of his privilege against self-incrimination under the Fifth Amendment of the United States Constitution and Article VI, Section 9, of the South Dakota Constitution and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Second, Satter had earlier and repeatedly informed authorities that he was seeking to retain counsel, but none was made available to him during subsequent interviews. Third, that there was overreaching by authorities in the form of promised confidentiality concerning the admissions which were later used against him at trial.

The habeas court found that Satter voluntarily and knowingly made admissions to Sheriff Berg, notwithstanding the fact that he had not been given Miranda warnings, and that such inquiry was investigatory rather than accusatory. We may not upset the circuit court's factual findings unless they are clearly erroneous. SDCL 15-6-52(a); Goodroad, supra; Spirit Track, supra; Cunningham v. Yankton Clinic, P.A., 262 N.W.2d 508 (S.D.1978).

In Oregon v. Elstad, 470 U.S. 298, 307, 105 S.Ct. 1285, 1292, 84 L.Ed.2d 222, 231 (1985), the court held that "[f]ailure to administer Miranda warnings creates a presumption of compulsion. Consequently, unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded from evidence under Miranda." See State v. Holland, 346 N.W.2d 302 (S.D.1984); Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). ¹ State admits that the petitioner did not receive warnings at this interview, but contends that he had been given warnings on several occasions prior to this interview. Sheriff Berg testified at trial that at this interview he "talked to Steve Satter reference to a number of burglaries that him and another fellow had been involved in. We talked about this for awhile, and at that time I asked him if he knew anything about two bodies that were supposed to be buried somewhere around the Watertown area." The dissent suggests there was no crime under investigation when Berg questioned Satter. However, it is clear from the testimony of both Sheriff Berg and Officer DeWall that law enforcement agencies were aware of the disappearance of the deceased individuals. Law enforcement officials had already begun looking for two persons, or their bodies, when Berg received the anonymous phone call suggesting where the bodies could be found, and if not found, that Berg should talk to Satter.

In Holland, a strikingly similar situation, the defendant was in custody in an Oregon jail facing child abuse charges while at the same time there were second-degree murder and manslaughter charges pending in South Dakota. An Oregon official interviewed the defendant and read him his Miranda warnings concerning the Oregon charges. Defendant waived his constitutional rights with regard to the Oregon charges because he considered those to be ridiculous. Not long into the interview, the official abruptly and without warning changed the focus of the questioning from the Oregon charge to the South Dakota incident. We said in Holland:

Under the circumstances of the abrupt change in focus of the interview, we find no voluntary or intelligent waiver by defendant of his rights. The record is clear that defendant waived his right to an attorney only for purposes of discussing the Oregon charges. When he waived his rights at that time, he never knew that the South Dakota incident would be raised. It is difficult to conceive how one can intelligently waive his right to counsel when he does not know the nature of the offense with which the major part of the interview will be concerned.

346 N.W.2d at 306. We held in Holland, that State failed to meet the heavy burden of showing an intelligent and knowing waiver of rights. We do not find the facts in this case to be dissimilar from Holland, and therefore hold that the prior Miranda warnings, not even related to the same interview, were not sufficient to advise defendant of his rights with regard to the murder charges. Thus, the admissions made to Sheriff Berg were involuntary and any evidence resulting therefrom could be subject to the Fruit of the Poisonous Tree doctrine. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We reverse the habeas court on this issue and remand for entry of judgment consistent with this opinion.

Because we reverse and remand on the issue of failure to properly Mirandize, we need not discuss the issues of request for counsel and of promised confidentiality. Nor need we discuss generally the issue of ineffective assistance of counsel. However, because the issue of the propriety of Instructions No. 5 and 15 may well come up on retrial, we deem it expedient to review them at this time in hopes of forestalling any issue on those instructions if given on retrial.

Petitioner argues, through counsel and pro se, that the two instructions were fatally flawed. Although, in a habeas corpus appeal, under our scope of review we will not ordinarily review jury instructions, we may review whether, under similar circumstances, a reasonably competent attorney exercising customary skills and diligent, would have objected so as to determine whether counsel's performance falls within the wide range of professional assistance required by the Sixth Amendment. ²

Instruction No. 15, as given by the court, states:

INSTRUCTION NO. 15

It is not required that the defendant shall produce a preponderance of the evidence in...