State v. Satter

• Decision Date: 29 November 1995
• Docket Number: No. 18574,18574
• Citation: 543 N.W.2d 249,1996 SD 9
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Steven Allan SATTER, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 249

543 N.W.2d 249

1996 SD 9

STATE of South Dakota, Plaintiff and Appellee, v. Steven Allan SATTER, Defendant and Appellant.

No. 18574.

Supreme Court of South Dakota.

Considered on Briefs Nov. 29, 1995.

Decided Jan. 31, 1996.

Mark Barnett, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, for plaintiff and appellee.

Steven R. Binger, of Binger Law Office, Sioux Falls, for defendant and appellant.

SABERS, Justice.

¶1 Satter appeals from a conviction of two counts of murder after re-trial.

FACTS

¶2 Satter was tried and convicted of two counts of unpremeditated murder in 1974. He was sentenced to two concurrent life terms without possibility of parole. His conviction was affirmed on direct appeal. State v. Satter, 90 S.D. 485, 242 N.W.2d 149 (1976) (Satter I). In his direct appeal, he asserted, among other things, that there was insufficient evidence of the depraved mind required for second-degree murder and that there was insufficient evidence to counter his claim of self-defense. The South Dakota Supreme Court found the evidence was sufficient. The court noted that, notwithstanding his claim of self-defense, Satter testified at trial that he had shot the victim in the back of the head after the victim had already been shot twice. Id. at 151-52.

In 1986, Satter filed a petition for post-conviction relief in the South Dakota state courts. He raised these issues: 1) voluntariness of statements to police; 2) ineffective assistance of counsel; and 3) inadequate jury instructions. (Citation omitted). The state habeas court denied his petition ..., but the South Dakota Supreme Court later reversed, holding that certain statements should not have been admitted into evidence. Satter v. Solem, 422 N.W.2d 425, 428 (S.D.1988) (Satter II). The state petitioned for a rehearing, which was granted, on the limited issues of the voluntariness of a statement and ineffective assistance of counsel. Satter v. Solem, 434 N.W.2d 725 (S.D.1989), cert. denied sub nom. Rist v. Satter, 490 U.S. 1091, 109 S.Ct. 2432, 104 L.Ed.2d 989 (1989) (Satter III). The statement at issue was found involuntary and the case was remanded to the habeas court for determination of the effects of the statement under 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). Satter III, 434 N.W.2d at 728. On remand, the habeas court denied relief ... but was again reversed. Satter v. Solem, 458 N.W.2d 762 (S.D.1990) (Satter IV). The South Dakota Supreme Court granted the writ of habeas corpus, vacated Satter's conviction and held that he [was] entitled to a new trial. Id. at 770.

Satter v. Leapley, 977 F.2d 1259, 1260-61 (8th Cir.1992).

¶3 The State filed an Amended Information on May 28, 1993, charging Satter with two counts of depraved mind murder in violation of 22-16-7 (1972 codification).

¶4 On August 20, 1972, Satter went to the trailer house of Kent Engle and Jerry Bowling, located on Pelican Lake in Codington County, South Dakota. He took with him a gun and nude photographs of his sister, Marianne Satter, which he found in Engle's car. He entered the trailer and shot both Engle and Bowling. He returned later and put the bodies in the bathroom of the trailer. He returned again the same day and moved the bodies to a rock pile south of Kranzburg, South Dakota. At some point, Satter cleaned the walls of the trailer.

¶5 After receiving certain information from an anonymous caller, Codington County Sheriff Curtis Berg found the two bodies on April 2, 1973. Delbert Peterson, a Division of Criminal Investigation agent, interviewed Satter on April 5, 1973 after advising Satter of his Miranda rights. On April 11, 1973, Peterson interviewed Satter again, after readvising him of his Miranda rights. Satter took a polygraph examination, but failed. On April 11 and 12, 1973, Satter signed statements admitting he shot the two men after they drew guns. The statements were signed on the condition that the State allow him a polygraph examination to prove his self-defense theory. However, no second polygraph examination was offered before Satter's first trial.

¶6 The State offered Satter a polygraph examination on April 3, 1991 and reaffirmed this offer on May 17, 1993. Satter did not take a polygraph examination. Satter asserted self-defense at trial, stating he shot Engle when Engle pointed a gun at him after their discussion. He also claimed he shot Bowling when Bowling entered the room and drew a gun.

¶7 Following the new trial, Satter was again convicted of two counts of depraved mind murder and sentenced to two concurrent life sentences. He appeals and we affirm.

¶8 1. Did the Amended Information and jury instructions omit an element of the charged offense?

¶9 Satter was charged under SDCL 22-16-7 (1972 codification), which provided:

Homicide is murder when perpetrated by any act imminently dangerous to others and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual.

¶10 Satter claims the Amended Information was in error for two reasons: the offenses were called second degree murder, which was not known in 1972, and there was no indication that to be convicted of depraved mind homicide, the act had to be committed "without any premeditated design to effect the death of any particular individual." ¹ He also claims the jury was incorrectly instructed on the elements of the crime because jury instructions did not indicate lack of intent as a separate element of depraved mind murder.

¶11 Satter did not object to the Amended Information or the jury instruction on elements of the crime. "Ordinarily, '[f]ailure of a court to correctly or fully instruct the jury is not reviewable unless an objection was made or a written instruction correctly stating the law was requested.' " State v. Otto, 529 N.W.2d 193, 195 (S.D.1995) (quoting State v. Oster, 495 N.W.2d 305, 312 (S.D.1993)). Satter asserts the plain error doctrine. SDCL 23A-44-15.

"[T]he plain error rule must be applied cautiously and only in exceptional circumstances." Our inquiry must be whether or not the error affects [defendant's] substantial rights and thereby prejudiced him.

State v. Davi, 504 N.W.2d 844, 855 (S.D.1993) (quoting State v. Brammer, 304 N.W.2d 111, 114 (S.D.1981) (Emphasis original)).

¶12 First, we address the Amended Information charging Satter with second degree murder. An information is not evidence. State v. Abdo, 518 N.W.2d 223, 224 (S.D.1994). The jury was specifically instructed not to regard it as such.

The purpose of an Indictment or Information is to apprise a defendant of the nature of the charges against him with sufficient specificity so that he may defend against the charges and may later plead the Indictment or Information as a bar to a subsequent charge.

State v. Arguello, 519 N.W.2d 326, 328 (S.D.1994). Satter makes no claim that his ability to defend himself on the charges was compromised because of the Amended Information. Therefore, we cannot find any substantial right affected by the minor error in the Amended Information.

¶13 Next, we consider the jury instructions. The jury was instructed:

It is provided by a statute of this state that homicide, the killing of one human being by another, is murder when perpetrated by an act imminently dangerous to others and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual.

and:

The elements of the offense of murder as charged in the Information, each of which the state must prove beyond a reasonable doubt, are:

1. That the Defendant at the time and place alleged in the information caused the death of Jerry Wayne Bowling [repeated for Kent Engle].

2. That the Defendant did so by an act imminently dangerous to others evincing a depraved mind, regardless of human life.

3. That the killing was not excusable or justifiable.

¶14 Satter argues the State's evidence and argument at trial indicated a premeditated intent to kill theory, while he was charged and the jury was instructed on a depraved mind theory. He then argues that the instructions "omitted the distinguishing element: that the charged offense could be true only if there was an absence of intent to kill."

¶15 Satter claims the absence of intent to kill is an affirmative element of the depraved mind murder, citing State v. Lyerla, 424 N.W.2d 908 (S.D.1988) cert. denied, 488 U.S. 999, 109 S.Ct. 774, 102 L.Ed.2d 767 (1989). Lyerla held attempted second degree murder does not exist. It did not distinguish between or even discuss premeditated and depraved mind murder. Satter also cites State v. Burtzlaff, 493 N.W.2d 1 (S.D.1992). Burtzlaff discusses first-degree manslaughter, which "requires the perpetrator to be without design to effect death." Burtzlaff, 493 N.W.2d at 4. Satter points out what he believes to be the court's discussion of an "element" of lack of premeditated intent to kill. However, the element the court discussed in Burtzlaff is one of four ways (the 1995 revision added a fifth) a defendant could commit first-degree manslaughter: "Without a design to effect death, but by means of a dangerous weapon." SDCL 22-16-15(3). It was not another element for the state to prove. ² Thus, Satter has not provided authority for his interpretation of the statute.

¶16 The State argues the absence of intent to kill is a negative element, which the State need not prove. The Wyoming Supreme Court considered a similar issue:

First Cheatham argues that there was no evidence that he acted without malice, and, since one element of the crime of involuntary manslaughter is the absence of malice, the state has failed to prove a violation of the statute....

Cheatham's assumption that an essential element of the crime of involuntary manslaughter is the absence of malice is not well founded....