Satter v. Solem

SATTER, Petitioner Steven Appellant,

and SOLEM, Respondent

Herman Appellee.

and

No. 15731.

Supreme Court of South Dakota. Kern, Gen., Atty. Pierre, Janine Asst. for Rehearing Aug. 29, Considered on 1988. respondent appellee; Roger and A. Tellin- Jan. Decided ghuisen, Gen., Atty. Pierre, on brief. Braithwaite, Falls, Richard pe- Sioux for appellant. titioner and MORGAN, (on rehearing). Justice rehearing, This before us on anis appeal from the decision of the trial court (habeas court) denying corpus habeas relief (Satter) to Steven Satter from two convic- tions of murder. We reverse remand. The habeas court determined that Satter voluntarily knowingly made certain ad Codington Berg missions to County Sheriff (sheriff), notwithstanding the fact that he warnings, had not been investigatory such rather accusatory. opinion, than The original re court, versing the April habeas was filed 20, 1988, and is found at 422 N.W.2d (S.D.1988) (Satter I). decision, In that two Justices voted to reverse the habeas court grounds on the Satter’s statements April the sheriff at the interroga tion should not have been admitted in evi they involuntary. dence were because Two (hereinafter Justices referred as the dis sent) contrary held to the vоted joined affirm. One Justice reversal grounds on the that Satter received ineffective assistance counsel. petition rehearing grant- State’s issues, ed namely: but limited to two (1) Whether [Satter’s] Berg Sheriff and ad- missible; and (2) Whether was denied effective [Satter] assistance of counsel due his trial object counsel’s failure to to the ad- mission into evidence of two exhibits. argu- iff Satter’s directions and recov- briefing and oral followed After additional The Division of ered the bodies. Criminal ments, first that the issue we determine in to Investigаtion was called assist the to dispositive and that Satter’s properly investigation and was ad- Satter are sheriff were not the rights any before vised his Miranda the Presumably, inadmissible. therefore interrogation. further complained the of in conduct of counsel upon be avoided retrial. second issue will stages has at of the State admitted all give background appeal to the factual that the sheriff failed Satter We summarize any prior all only warning immediately first issue. At to relates the Miranda interrogation custody in оn the pertinent, Satter was in the commencement times however, question. urges, Codington burglary on date State County Jail unnecessary questioned by warning en- that such a was charges. He law was position This is based on four re- this case. officers on several occasions forcement First, major premises. in- the sheriffs burglaries garding those and on each point, merely investiga- quiry, at that was fully advised those occasions Satter was accusatorial, tory, not had no because he question- rights his Miranda in advance suspect. crime and Satter was not a known ing. Satter, stranger Secondly, not a who was meantime, In the sheriffs office was knew, justice system, to the criminal under- investigating disappearance two rights, stood and waived his Miranda thus evening April Late in the local men. give warning him the failure to was anonymous the sheriff received an Thirdly, a merely technical omission. Sat- telephone tip on the location of bodies story a ter’s about Deluci was fabrication missing suggestion men of the nothing incriminating and there was said day, connected. The next after Satter was Lastly, Satter with the offense murder. attempt locating at an unsuccessful deliberately or im- there were no coercive telephone information, per the bodies proper presump- tactics used to warrant jail. sheriff visited Satter in the Without tion of Satter, any attempt to mirandize the sher respect premise, With the first interrogated iff first him some bur about pointed question out in Satter glaries changed in the area. He then investiga- was not whether the asking if he interrogation by line of accusatory, tory whether the inter- but anything suppos knew about two bodies The discloses view was custodial. record edly vicinity.* buried in the Watertown question held in that the interview in The sheriff testified at trial that when Depart- an office at the Watertown Police bodies, posed first asked about in custody. ment while Satter was hypothetical question If he effect: The Miranda Court stated: paid go destroy had been out and two principles today announced deal buried, bodies that are what could be protection which must be charged responded with? sheriff privilege against self-incrimination charged being an possibly he could be subjected when the is first individual accessory. After some further conversa- police interrogation custody while in tion, gave sheriff detailed di- deprived of the station or otherwise to find the location of the rections bodies. any significant way. freedom action in Next, Satter told the Sheriff that some (Emphasis person Minneapolis Delu- third from named Arizona, 384 U.S. Miranda men, ci, apparently who killed the two (1966). 16 L.Ed.2d money offеred him to burn the bodies. interrogation again Satter stated that he had not done so be- Custodial background Supreme the smell of the The sher- cause of bodies. the United States * making did Satter contends that the sheriff also told him testified that he not remember such anything said would confi- promise. that Satter trial, questioned at dential. When the sheriff Arizona, any decision in Edwards have cited cases wherein the Court’s United 481-82, upheld States Court has admis- wherein the of any sion statements taken at custodial language Court reaffirmed interrogаtion where such interrogation was required interroga that “custodial which giving not commenced of the Mi- to preceded by putative tion be advice warning. randa right he has the to remain defendant that suggestion previous The that Satter’s ex- right presence silent and also the to of perience system justice criminal attorney.” an This was reiterated Ari giving any warning excuses' the of is rather U.S. -, -, Roberson, 486 zona v. State, unique. The and the dissent in Sat- 2093, 2097, 100 L.Ed.2d I, suggest ter seem to that there should be wherein the court stated that ma intelligence some sort of If test. the sus- jor purpose give ‘to con Miranda “was pect previous convictions, has four he is guidelines constitutional for law en crete sufficiently knowledgeable of his Miranda agencies and forcement courts to follow.’ rights. what if But there are three convic- we stressed on numerous occa ‘As have tions, two, only or one? do Where we sions, advantages” principal of the “[o]ne importantly, draw line? More where clarity is of Miranda the ease and its do the law enforcement authorities draw omitted.) (Citations application_’” They the line? are the ones in the field. argument, if For sake we of exceptions really The creation does them agree were to that the sheriff’s initial in no favor. Far better to adhere to the protected quiry was somehow from Mi bright all, line requires rule. After it no randa, point firmly we that at the believe great card, effort to take out the Miranda proposed hypothetical his where Satter subject rights, read the and ask the question the sheriff was on notice that simple questions: you your Do understand or Satter was could involved some rights you and do waive them? activity. point, criminal At that he should immediately given requisite have Satter premise third is the effect warning. procedure so simple is response that since Satter’s was a fabrica is following there no excuse for not it. We tion, he If did not incriminate himself. all bright rule, prefer to adhere to the line tell story Satter done carving exceptions. than start rather from Minneapolis, about Deluci we would premise equally The second is unim agree. tend At least we would not find pressive. premise That is that Satter sufficiently prejudicial require it rever knew, understood and waived his Miranda sal convictions. What convenient rights; stranger was not a to the ly by the State overlooked dissent justice system previ criminal and had been argument, in this is that the statements ously burglary interroga warned on some sug detailed the location of the To bodies. Therefore, argued, tions. the failure gest that that information not incrimi give warning only a technical nating ignores reality. knowledgе Satter’s omission. the exact location those bodies was the first direct evidence that linked him Miranda, In find we the Court’s reason- Nothing else murders. was done ing always high that since it has set stan- after until the bodies were recovered. No proof dards the waiver of constitu- had, further no at rights and tional since the State establishes made, tempt at lie detector tests was under no circumstances which the interro- until infor gation place, confession was made after that heavy takes burden to upon. mation those di рrivilege was acted Absent demonstrate waiver of the rections, might against the bodies still be molder rightfully self-incrimination rests grave pile. on the shoulders of the in their under the rock State. 384 U.S. at However, speculate S.Ct. at need not on that. fact, gave Neither the In State nor dissent the sheriff the di- SABERS, JJ,, in the HENDERSON implicated himself rections concur. crime. we deal with premise The final WUEST, C.J., MILLER, J., deliberately no coercive there were is that dissent. pre used to warrant a improper tactics words, sumption In other MILLER, (dissenting). Justice hose, icy use the rubber absent following, In addition dissent. interrogations under showers or marathon hereby specifically incorporate my dissent

bright presume that lights, we should not (S.D. Solem, 422 N.W.2d 425 involuntary. Satter’s statements were 1988) (Satter I). Elstad, In Oregon 231 84 L.Ed.2d 105 S.Ct. following language:

(1985), find the warnings Miranda Failure to administer smattering obligatory from Aside a presumption of a creates to a few decisions handed down citations statements that Consequently, unwarned Supreme Court, the ma the United States voluntary the mean- are within otherwise upon jority solely relies the Court’s deci must Amendment never- of the Fifth Arizona, in 384 sion Miranda v. U.S. from evidence under excluded theless be (1966). 1602, 16 By 694 so 86 L.Ed.2d case, Thus, in the individual Miranda. doing, majority ap the fails to consider provides a ‍​​‌‌‌​​​​‌‌​​​​‌‌​​‌​‌‌​​​‌​‌‌​​​​‌​‌‌​‌‌‌​‌‌​‌​‍preventive medicine Miranda’s preciate writings on Supreme the Court’s has remedy the defendant who even to in the the issue custodial no identifiable constitutional suffered harm, years passed twenty-two which have since (citations omitted). initially Most handed down. Miranda was though presumption, But the Miranda majority completely mis importantly, the prosecu- purposes of the for irrebuttable Suprеme the misapplies understands and chief, require in does not that tion’s case Elstad, holding in 470 Oregon Court’s their dis- the statements and fruits be 1285, 84 L.Ed.2d 222 105 S.Ct. U.S. inherently Despite carded as tainted. directly on a decision which voluntary patently state- the fact point case us. with the now before of Miranda must ments taken violation case, prosecution’s be excluded from fully applica- appreciate In order does presumption of coercion not bar necessary it is bility of to this Elstad impeachment purposes their use to recite some of the facts found therein. (Cites omitted.) cross-examination. Salem, Ore- In December home (Emphasis gon, Missing art burglarized. was completely negates prem- This passage $150,000. furnishings objects and valued this applied ise as case. burglary A contacted witness implicating 18-year- then is the effect of these involun- county What sheriff’s office tary on Satter’s burglary. admissions convictions Michael Two old Elstad light poisonous of the “fruit tree then to the home of Elstad’s officers went in Wong Sun v. doctrine” announced Unit- Thе parents for his arrest. with a warrant States, 371 83 S.Ct. 9 ed U.S. spoke parents’ in his officers with Elstad (1963)? Since habeas L.Ed.2d concerning burglary. One living room ruling that the statements were vol- court’s felt Elstad that he officer indicated untary require not to consider the did burglary, Elstad involved in the was implications of involuntariness and the “Yes I there.” Elstad then stated was doctrine, we do not consider it Wong Sun office escorted the sheriffs where pass question. appropriate for on this us rights, was later advised his Miranda Rather, appropriate ha- it mоre proceeded He which he waived. then court consider this issue on remand. beas himself give implicating a full statement in the crime. Elstad was AND REMAND. and others WE REVERSE first-degree (1974). bur- charged and convicted It contending glary. appealed, Elstad further noted that the failure to administer signed warnings his oral statement and confession the Miranda does not necessarily Oregon suppressed. should have been breed “the same consequences police as reversed, holding appellate court that his infringement right, of a constitutional so there”) (“I initial statement inad- that evidence following uncovered an un as without the missible been warned suppressed statement must be ” prescribed warnings, Miranda and that Elstad, poisonous ‘fruit tree.’ signed later confession was inadmissi- U.S. at S.Ct. at 84 L.Ed.2d at ble due to the taint on Elstad’s initial state- The majority here “misconstrues the ment. The United States protections nature afforded Mi granted certiorari and held that the Fifth warnings randa and therefore misreads require suppres- does Amendment not consequences police supply failure to proper sion made confession after them.” Id. warnings valid waiver of majority opinion prop- states that the rights police solely because the had ob- er determining whether Satter’s tained an earlier but un- statements are admissible is whether Sat- suspect. warned admission from ter’s interview was Following custodial. The similarities between Elstad and Sat- reasoning, line of majority then Elstad, ter are obvious. Like Michael Ste- determines that because the initial inter- suspect yet ven Satter was not a when custodial, any view unwarned state- incriminating made his initial statement. ments therein be suppressed. must How- Further, Elstad, initially like incrimi- ever, by Court, as Supreme noted warned, having been nated himself without upon focus should not be whether the in- to continued incriminate himself after (as terrogation was custodial was con- warnings received the Miranda in Elstad) in ceded but rather whether the by conducted a Division statement was coerced. “Absent some of- (DCI) Investigation Agent Criminal four ficially self-accusation, coerced the Fifth days days аnd ten after his un- initial privilege Amendment is not by violated Finally, warned statement. as in Elstad damning even the most admissions.” See (where police ques- conceded that the Elstad, 305, 1291, 470 U.S. at 105 S.Ct. at living in tioning Elstad’s room was custodi- 84 L.Ed.2d 229 citing at United States v. al), in custody probation Satter was on a 187, Washington, 181, 431 U.S. 97 S.Ct. violation at the time he made his initial 1814, 1818, 238, (1977). 52 L.Ed.2d 245 incriminating statement. Moreover, the Court noted majority in this case concludes that is presuming there no warrant for coer- as a result Satter’s initial unwarned the suspect’s cive effect where initial in- statement, poisonous the “fruit tree” statement, though culpatory technically doctrine in Wong announced v. United Sun Miranda, in voluntary. violation States, 471, 407, 371 83 U.S. S.Ct. 9 L.Ed. whether, The relevant is 2d 441 applicable. is somehow fact, the second statement was also vol- However, Court Elstad any As untarily made. such in- necessarily is held that such not the case. quiry, the finder of fact must examine It stated that fundamental differences ex surrounding circumstances and the ist between the role of the Fourth Amend police entire course of conduct re- exclusiоnary ment rule and the function of spect suspect evaluating guarding against prosecutorial Miranda (Em- voluntariness of his statements. compelled prohibited use of statements as phasis by Elstad, the Fifth Amendment. 470 U.S. Elstad, 318, 470 U.S. at 105 S.Ct. at 1297- at 105 at 84 S.Ct. L.Ed.2d at (footnote omitted). 84 at 238 Quarles, 228-29. See New York v. 649, 104 Satter, 467 U.S. S.Ct. 81 L.Ed.2d 550 There is no doubt that who was in (1984); Tucker, Michigan ‍​​‌‌‌​​​​‌‌​​​​‌‌​​‌​‌‌​​​‌​‌‌​​​​‌​‌‌​‌‌‌​‌‌​‌​‍jail probation violation, 417 U.S. on a was indeed in

730 initially by physical violence or other delib- Berg fession at time Sheriff

custody means to break the sus- regarding him the where erate calculated inquiry of mаde However, consequences bodies. will and the uncertain pect’s of the two abouts inis suspect freely giv- a question ‘guilty not whether secret’ of disclosure of suspect rather, custody; it is whether response an unwarned but noncoer- en in voluntarily. Vol Elstad, made his initial statement at question[.]” cive 470 U.S. proper element untary remain a 234. Jus- at 84 L.Ed.2d at 105 S.Ct. Miranda, at enforcement. law Brennan, Elstad, mus- in his dissent to tice 16 L.Ed.2d at at S.Ct. ex- “parade of as tered an entire horrors” by the Constitu being prohibited from Far coerced amples of confessions which were if tion, guilt by wrongdoers, “admissions through the use by law enforcement coerced, inherently El are desirable.” not violence, torture, contending that force or stad, United quoting at S.Ct. dis- impossible perceive any causal it is 181, 187, Washington, U.S. States between the facts in Elstad tinction (1977). 1814, 1818, 52 L.Ed.2d involving a confession that coerced one Moreover, initial nor neither the when majority Jus- torture. discounted suspect subsequent admission “wholly being tice Brennan’s contention coerced, per justification exists “little agree. unpersuasive.” mitting probative highly evidence note, Finally, as did El- irretrievably confession stad, that it is an unwarranted extension Elstad, 470 U.S. at lost to the factfinder.” “simple that a failure to hold 1294-95, 84 L.Ed.2d at 234. warnings, unac- administer [Miranda] companied any actual coercion or other if argument, For the Sat- sake of even circumstances calculated undermine coerced, first the Su ter’s statement was will, exercise free so suspect’s ability to his preme recognized that the coer Court has investigatory process the that a sub- taints effect confession can be amelio cive of a ‍​​‌‌‌​​​​‌‌​​​​‌‌​​‌​‌‌​​​‌​‌‌​​​​‌​‌‌​‌‌‌​‌‌​‌​‍sequent voluntary and informed waiver is rated. in such cases as Even extreme Oklahoma, 596, period.” Lyons v. 322 64 S.Ct. for some indeterminate U.S. ineffective police Elstad, 88 L.Ed. 1481 in which 105 at 470 U.S. at S.Ct. forced a accused full confession from the re- L.Ed.2d at 232. While Miranda 84 through of interro unconscionable methods must be quires that an unwarned admission gation, the has that the assumed admissibility any suppressed, the subse- could, coercive effect of the confession cir- quent should turn in these statement time, dissipated. be See West solely cumstances on whether it is know- States, 86 over v. 384 United U.S. result, voluntarily made. ingly and As a (1966) 1602, 1639, 16 736 L.Ed.2d improper coercive deliberately or absent Here, (a companion Miranda). case to obtaining the tactics initial statement days days and ten four later here) (which present the certainly are not between to Sheriff his unwarned statement suspect an un- mere fact that a has made Berg Agent and his warned statements pre- does not warned admission warrant herе, any Petersen. If coercion there A sumption subsequent ad- concede, pas I certainly which do not warnings a sus- ministration of Miranda sage dissipated Lyons, its time effect. pect given has but un- who Westover, supra; supra. ordinarily suffice warned statement should preclude the to remove the conditions that argues is little majority there that earlier admission statement. See non- difference between unwarned Elstad, 470 105 at U.S. at questioning place in coercive which took 84 at hose, this case “the use of the rubber showers, The similarities between Elstad and Sat- icy marathon Therefore, most con- bright There is ter are obvious. lights.” under Nonsense!! reach same “a the direct con- clusion which we should be the vast difference between sequences flowing by con- Su- from coercion as that reached United States

731 written, particular strong Court, namely that there is a preme Satter’s sup- not be presumption statement ade warned should counsel had rendered explain can pressed. Perhaps majority quate significant assistanсe and made all hand, holding on its why, on one bases pro decisions exercise reasonable the United States by cases decided various Strickland, judgment. fessional ulti- Court and then decides at S.Ct. at L.Ed.2d at 695. 80 to that issue in direct contradiction mate recognized This court has will not nearly an identical holding latest Court’s second-guess judgment a defense counsel’s may Perhaps this issue issue! fact/law complained legit appear if the acts to be United States ultimately resolved State, v. Jibben imate trial tactics. cеrtiorari. grant on a Supreme Court Tchida, v. (S.D.1984); State N.W.2d 788 (S.D.1984). 347 N.W.2d II surrounding Most of the concern majority, Although not addressed question of ineffective assistance of coun- of ineffective must write on issue sel relates to introduction at trial of Justice of counsel because assistance 21 and Exhibits which were Satter’s (I I. must as- dissent Sabers’ Specifically, state- sworn statements. agrees my that Justice Sabers sume noted that: statement ments “This issue, first he stat- analysis under the since understanding polygraph with the that a “upon remand prior dissent that ed test will be offered me at a future date. retrial, from the the Issue the State or ob- unless found Also will not contest should be excluded defendant I, clearly voluntary.” ject polygraph being test offered as to be (Sabers, J., concurring in N.W.2d court.” evidence result). specifically The habeas court standards, any con- By our if there voluntary and the statements to be found legitimate strategy ceivable trial in allow- finding is not erroneous. See clearly statement, admission of the written my prior authority cited and in above See uphеld. then the conviction must be dissent, did not with which Justice Sabers Dornbusch, (S.D. State 384 N.W.2d issue.) take Anderson, 1986); State 387 N.W.2d Attorney represent- Hackett’s conduct (S.D.1986). of ing did not descend to the level court, attorney by As noted the habeas Strick- assistance counsel. ineffective rea- may have had several valid Hackett Washington, land acquiescing in the admission sons for 80 L.Ed.2d 674 establish- written statements without Satter’s steps determining ineffective es the two part of refer- the statement excised (1) counsel: assistance of the defendant ring pоlygraph to a test. As the habeas performance show that counsel’s must noted, actually “a court the statement was (2) the defendant must show deficient taken double-edged sword.” Satter had performance prejudiced deficient examinations; polygraph some several Strickland requires defense. failed. Satter passed and some were judge a court must the reasonableness dealing polygraph failed examinations challenged on the facts counsel’s conduct subject matter contаined in his state- particular as of the of the viewed However, that he ment. Satter contended Further, counsel’s conduct. time of dealing con- polygraph with the failed the whether, light in court must determine mis- of his tents of his statement because circumstances, or the identified acts all the possible as to the defense taken belief range outside omissions were the wide however, did, pass a self-defense. Satter competent professionally assistance. concerning homi- polygraph examination Moreover, in keep the court should mind in South Dakota and another function, cide western as elaborated that counsel’s concerning burglaries. As norms, polygraph some prevailing professional is to make testing court, attorney Hack- process noted the habeas the adversarial work concern, cross-examination, complains a sur- deal of that Satter now ett, secured Agent Peter- strategy performance from DCI of Hackett’s prising admission that Petersen believed years to the effеct years sen some thirteen after trial and the truth. Fur- to be Satter’s statement died. Memories have after Hackett has ther, his testified that statement concerning faded the actual occurrence Thus, since Petersen was the truth. events which culminated Satter’s convic- contended Satter’s Satter had both and Hackett is not here to defend his tion truth, and since there statement was the performance. Trying to establish whether testimony had failed a no that Satter as- Hackett’s actions constituted ineffective сoncerning his polygraph examination death, greatly sistance is hindered statement, jury that the could deduce leaving nothing record us with but a cold fact true. This is the statement was in testimony (including and the of others Sat- proposition that converse of Satter's himself, ter who has a vested interest poly- relative to a portion of his statement tarnishing performance) by Hackett’s graph examination would indicate legitimacy to determine the of his which poly- another jury that Satter had failed earlier, given tactics. As stated the state testimony on that graph due to the lack exists, I of the record as it am convinced noted: subject. The habeas court performance that Hackett’s did not fall be- to do [Wjhat Attorney Hackett was able required low that which was of him as an to have one of the State’s effect was attorney Any at law. assertion to the con- witnesses, Delbert Petersen DCI chief trary simply supported by is not the record. Agent, veracity of Exhib- corroborate affirm the circuit court. would my opin- it 21 It is statement]. [Sаtter’s regarding ion that Hackett’s actions Sat- I am authorized to state that Chief part statements were of a

ter’s written joins WUEST in this dissent. Justice legitimate trial ‍​​‌‌‌​​​​‌‌​​​​‌‌​​‌​‌‌​​​‌​‌‌​​​​‌​‌‌​‌‌‌​‌‌​‌​‍tactic. allega- Satter’s tions are not sufficient to overcome the

strong presumption that counsel’s con- range

duct of rea- falls within wide assistance, in oth- professional

sonable words,

er does not constitute action might not be considered solid trial

which

strategy. (Emphasis It should also be noted that an interest- PETERSON, Janey Plaintiff Hackett, attorney colloquy between Appellant, place in Satter and the court took chambers original trial. the close Satter’s participated asked if When PETERSON, Gregory A. Defendant the trial of his case in connection with Appellee. picking replied jury, “Yes.” No. 16070. Further, approved jury as it selected, having and admitted to been con- Dakota. South throughout concerning sulted the trial May 1988. Considered on Briefs questions and decisions that were made. court he felt When asked whether Jan. Decided your attorney “that has done a tremendous replied job you,” for “Yes do.”

Finally, it should be noted that at the original attorney

time of the trial Hackett highly respected lawyer,

was a trial

practiced thirty years. He was known tenacious ‍​​‌‌‌​​​​‌‌​​​​‌‌​​‌​‌‌​​​‌​‌‌​​​​‌​‌‌​‌‌‌​‌‌​‌​‍advocate with wealth observe, experience. great

trial with a

Case Details

Case Name: Satter v. Solem

Court Name: South Dakota Supreme Court

Date Published: Jan 4, 1989

Citation: 434 N.W.2d 725

Docket Number: 15731

Court Abbreviation: S.D.