State v. Bodtke

• Decision Date: 08 March 1985
• Docket Number: No. 84-447,84-447
• Citation: 363 N.W.2d 917,219 Neb. 504
• Parties: STATE of Nebraska, Appellee, v. LaVonne F. BODTKE, Appellant.
• Court: Nebraska Supreme Court

Page 917

363 N.W.2d 917

219 Neb. 504

STATE of Nebraska, Appellee, v. LaVonne F. BODTKE, Appellant.

No. 84-447.

Supreme Court of Nebraska.

March 8, 1985.

Syllabus by the Court

1. Miranda Rights. The requirements and corresponding proscriptions of Miranda relate to governmental activity such as interrogation by law enforcement personnel. Miranda does not dictate rules governing the manner or efforts of private citizens enforcing their private property rights by private investigation or interrogation.

2. Confessions: Evidence. Voluntariness is the ultimate test to use an accused's statement as evidence in a criminal prosecution.

3. Confessions: Evidence. On questioned voluntariness, an accused's statement, whether an admission or a confession, made to private citizens, as well as to law enforcement personnel, must be voluntary as determined by a court for admissibility and as a fact ascertained by the jury.

4. Confessions: Words and Phrases. Generally, before one is a person in authority perhaps affecting voluntariness of an accused's statement or confession, the accused must reasonably believe that the person making a promise or inducement related to a statement or confession is one who has the capacity, directly or indirectly, to produce a represented material result in the prosecution or disposition of a matter in the criminal justice system.

5. Jury Instructions: Appeal and Error. An appellant cannot claim prejudice regarding an instruction favorable or beneficial to the appellant's theory on which a case is tried.

David E. Cording, Hebron, for appellant.

Paul L. Douglas, Atty. Gen., and Jill Gradwohl, Lincoln, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

SHANAHAN, Justice.

This is an appeal from the district court for Thayer County where LaVonne F "Bill" Bodtke was convicted in a jury trial on two counts of forgery, Neb.Rev.Stat. §§ 28-602(1) and 28-603(1) (Reissue 1979), Class III felonies. The district court sentenced Bodtke to a term of 1 year in the Nebraska Penal and Correctional Complex on each count, with sentences to run consecutively. We affirm the judgment of the district court.

Bodtke owned the Bodtke Insurance Agency in Hebron, Nebraska, and was an agent for Farmers Mutual Insurance Company of Nebraska (Farmers Mutual). Farmers Mutual insured farm property and livestock against loss caused by various casualties, for example, wind damage to buildings and livestock death from vandalism or lightning. Generally, when an insured sustained a loss, the local agent, such as Bodtke, would verify the loss and process the claim. The process included a written proof of loss--a "Property Loss Notice" and "Statement of Loss" signed by the insured--mailed by the agent to Farmers Mutual, which issued a settlement draft. Farmers Mutual would mail the settlement draft to the agent who had forwarded the claim, and the agent would deliver the draft to the insured-claimant.

During 1982, Bodtke, without knowledge of certain policyholders of Farmers Mutual, signed proofs of loss in the names of persons insured by Farmers Mutual, claims for losses which never occurred. Upon receipt of the settlement draft issued for the false claim, Bodtke forged the signature of the insured, cashed the check, and kept the proceeds.

Farmers Mutual became suspicious of approximately 60 claims submitted through Bodtke's agency for claimed losses in the latter part of 1981 and 1982. Of the suspect claims, 4 related to livestock loss through gunshot wounds, 34 for livestock killed by lightning, and 17 for property damage caused by wind.

Two representatives of Farmers Mutual met with Bodtke at his office in Hebron on January 25, 1983, to "confront him with the fraudulent claims." In that 1-hour meeting, Bodtke admitted submitting false claims. The Farmers Mutual representatives suggested that Bodtke come to the insurance company's home office in Lincoln, but Bodtke was unable to go to Lincoln on January 25. After unsuccessful attempts at scheduling, a meeting was held on February 4 in the library of Farmers Mutual's headquarters in Lincoln. Attending the meeting were Bodtke and three officials of Farmers Mutual--its president, a vice president, and the corporate general counsel. No law enforcement personnel attended or knew about the meeting. Although Bodtke's attorney was aware of the meeting at Farmers Mutual's office, Bodtke appeared without counsel and acknowledged that his attorney did not object to any meeting to discuss and resolve the fraudulent claims. No one from Farmers Mutual called Bodtke's attorney, and the meeting proceeded.

None of the Farmers Mutual representatives informed Bodtke that he had a right to the presence of an attorney during the meeting or that he was not at liberty to leave the meeting at any time. In fact, Bodtke, for some undisclosed reason, left the meeting but returned and resumed discussing the claims questioned by Farmers Mutual.

In the course of the meeting, the general counsel for Farmers Mutual told Bodtke that the insurance company wanted "to resolve the matter of [Bodtke's] debt to the company," that Farmers Mutual was obligated "to report these matters [false claims] to the Department of Insurance," and that any possibility of criminal prosecution "would be up to the State." After Bodtke and the officers of Farmers Mutual sorted through a list of sundry suspect claims submitted through Bodtke's agency and paid by the insurance company, Bodtke identified the false claims which he had submitted. Bodtke and Farmers Mutual expressed a mutual desire to minimize notoriety which might ensue from civil litigation regarding the false claims. Farmers Mutual had prepared an "agreement" for Bodtke's signature. The agreement recited Bodtke's submitting "false claims" and Farmers Mutual's issuing checks for payment of $30,676.63 on the false claims, as well as contained a recital that Bodtke "forged the endorsement of the payees" on the checks and kept the proceeds "from the claim payments." Further, the agreement required Bodtke to "transfer ownership of the Farmers Mutual portion of [Bodtke's agency] to the company, to be sold," and also contained:

Agent understands this agreement settles only his financial obligation to the company, and that the company is required by law to report the matter to the state. Agent further understands that the state alone will decide whether to file criminal charges against agent and take administrative action against his remaining agent's licenses.

Bodtke signed the agreement on February 4 in the office of Farmers Mutual. Later, in Thayer County, Bodtke was charged with two counts of forgery, namely, falsely making a claim against Farmers Mutual in violation of § 28-602(1) and falsely endorsing or uttering a check issued by Farmers Mutual to an insured. See § 28-603(1). Pursuant to Neb.Rev.Stat. § 29-115 (Cum.Supp.1984), Bodtke moved for pretrial suppression of his February 4 agreement with Farmers Mutual, claiming that the agreement was an involuntary confession and was obtained in violation of safeguards for custodial interrogation of a suspect as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The district court overruled Bodtke's motion. In his jury trial Bodtke did not testify and offered no evidence but, as apparent trial strategy, proceeded on the expectation that the jury would reject the February 4 "agreement" as involuntary and acquit Bodtke.

At conclusion of the evidence and during the conference on instructions, the court indicated its intention to give an instruction patterned on NJI 14.52, regarding voluntariness and the use of Bodtke's written "agreement" as evidence of guilt. Part of the court's proposed instruction contained:

The state has introduced in evidence certain admissions or confessions claimed to have been made by the defendant.

Before such admissions or confessions may be considered by you as evidence of defendant's guilt, you must find beyond a reasonable doubt that they were freely, voluntarily, and intelligently made by the defendant.

....

To be voluntary an admission or confession does not have to proceed wholly or spontaneously at the suggestion of the defendant. The fact that it may have been elicited by questions propounded by persons who were interrogating the defendant will not, of itself, render it inadmissible.

The remainder of the court's proposed instruction was taken from NJI 14.52. Bodtke objected to the court's proposed instruction and requested that the omitted phrase, "in authority," as found in NJI 14.52, be added to the court's proposed instruction, namely, "questions propounded by persons in authority who were interrogating the defendant ...." (Emphasis supplied.) Also, Bodtke requested a definitional instruction regarding "persons in authority." The court denied both requests by Bodtke and gave its instruction as indicated. The jury found Bodtke guilty on both counts of forgery, and the court sentenced Bodtke after a presentence report.

Bodtke claims two errors in the proceedings against him, namely: (1) Because representatives of Farmers Mutual did not give the warnings required by Miranda, the district court should have suppressed Bodtke's statement, the February 4 "agreement" given to insurance company representatives; and (2) In accordance with NJI 14.52, any instruction regarding voluntariness of Bodtke's statement should have included (a) the modifying phrase "persons in authority" in reference to Bodtke's interrogators and (b) a definition of the phrase "persons in authority."

Factfinding by a trial court on a motion to suppress will not be overturned on appeal unless clearly wrong. State v McCarthy, 218 Neb. 246, 353 N.W.2d 14 (1984).

Although not critical for disposition of the issues presented in this appeal, there is a distinction between an admission and a confession. Bodtke uses the word...