State v. Helmer

GILBERTSON, Justice

(concurring in result).

[¶ 48] I concur with the majority on Issues I and III. I concur in result only on Issue II.

[¶ 49] As the majority noted, our review of Helmer’s self-initiated comments to Officer Wiest is limited to whether they were freely and voluntarily made. The trial court found Helmer’s comments to be voluntary. This finding is binding on us and will not be overturned unless we determine it to be clearly erroneous. State v. Larson, 512 N.W.2d 732, 740 (S.D.1994); State v. Kaiser, 504 N.W.2d 96, 101 (S.D.1993); State v. Dickey, 459 N.W.2d 445, 447 (S.D.1990); State v. Jenner, 451 N.W.2d 710, 716 (S.D.1990) cert. denied sub nom., Jenner v. Smith, — U.S. -, 114 S.Ct. 81, 126 L.Ed.2d 49 (1993); State v. Gregg, 405 N.W.2d 49, 52 (S.D.1987); State v. Caffrey, 332 N.W.2d 269, 271 (S.D.1983).

[¶ 50] In Kaiser, 504 N.W.2d at 101, we stated “[t]o determine whether an incriminating statement was voluntarily made, we must examine the totality of the circumstances.” (citing State v. Dickey, 459 N.W.2d 445, 447 (S.D.1990)). “The trial court must have reviewed the totality of the circumstances surrounding the interrogation.” Jenner, 451 N.W.2d at 716; (citing State v. Albright, 418 N.W.2d 292, 297 (S.D.1988); State v. Faehnrich, 359 N.W.2d 895, 898 (S.D.1984). See also Caffrey, 332 N.W.2d at 271; State v. Lyons, 269 N.W.2d 124, 126 (S.D.1978)). “In reviewing the trial court’s findings on voluntariness, we consider the evidence in the light most favorable to the finding.” Jenner, 451 N.W.2d at 716 (citing State v. Volk, 331 N.W.2d 67, 70 (S.D.1983)).

[¶ 51] A review of the totality of the circumstances here indicates Helmer’s conversation with Wiest was voluntary. Prior to interrogation by Officers Moore and Eisen-braun, Helmer had received Miranda warnings and stated he understood them. Hel-mer, in fact, refused to waive these rights and had exercised them. The trial court found the subsequent interrogation by Moore and Eisenbraun to be in violation of those rights and suppressed Helmer’s statements to these two officers.

[¶ 52] When Helmer made his comments to Wiest, however, interrogation had ceased and Moore and Eisenbraun had exited the room. Wiest then entered, as the majority notes, “for the sole purpose of watching Helmer while booking preparations were being made.” Wiest did not question Helmer at all and stated he tried to steer away any conversation about the crime. Nevertheless, Hel-mer initiated conversation with Wiest almost immediately, and on the very subject Wiest sought to avoid, by asking Wiest, “[d]o you know what I’m here for?”

[¶ 53] Apart from the fact that interrogation by Moore and Eisenbraun had ceased and that Wiest asked him no questions regarding the crime, Helmer’s initiation of conversation with Wiest evidences voluntariness. In Jenner, 451 N.W.2d at 717, we looked to the defendant’s subjective state of mind as an indication of whether her statements were freely and voluntarily made. Therein, we noted Jenner’s state of mind was indicated by her “oral expressions” which weakened “any supposition that her will was overborne.” Id. Had Helmer not felt free to solicit conversation from Wiest, he would not have done so. He was under no compulsion to speak or respond to Wiest in any manner. He did not choose to resist conversation with Wiest as he did earlier with Moore and Eisenbraun. I believe Helmer’s initiation of conversation demonstrates a state of mind consistent with the trial court’s finding that the statements were freely and voluntarily made.

[¶ 54] Helmer’s conduct certainly evidences no fear of law enforcement or that his will was likely to be overborne. He initially bragged to Henson that he had committed the perfect crime. Later when he learned his wife was being sought for questioning by law enforcement, rather than fleeing, he brazenly telephoned the police station and demanded to know why the police were looking for his wife. Following this telephone call, *480Helmer voluntarily presented himself to the police for an interview, but refused to bring his wife. As noted above, when informed of Ms Miranda rights, he initially invoked them. The record further reflects Helmer was 24 years old at the time of his arrest and no stranger to the criminal justice system, having both a juvenile and adult criminal record.*

[¶ 55] In Larson, 512 N.W.2d at 741, we acknowledged “[t]he taint of the lawless conduct does not last forever.” (citing Satter v. Solem, 458 N.W.2d 762, 768 (S.D.1990)).

When a prior statement is actually coerced, the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators all bear on whether that coercion has carried over into the second confession.

Oregon v. Elstad, 470 U.S. 298, 310, 105 S.Ct. 1285, 1293, 84 L.Ed.2d 222, 232-33 (1985). Although the time was not lengthy that passed between Helmer’s statements which were eventually suppressed and the conversation he had with Wiest, and both the statements occurred in the same place, the change in identity of officers was the event of major significance. See Holland v. McGinnis, 963 F.2d 1044, 1051 (7th Cir.1992), cert. denied, 506 U.S. 1082, 113 S.Ct. 1053, 122 L.Ed.2d 360 (1993) (finding a change of officers to be more significant than a change of locations). The change in officers here represented not only a change of individual identity but a change of purpose as well. Helmer was no longer under interrogation but was merely being watched while booking preparations were made. The tape recorder, which had recorded Helmer’s interrogation by Eisen-braun and Moore and which was turned off at Helmer’s request, was no longer running. Wiest was not part of the investigative team assigned to this case and had, in fact, finished his shift when he was asked to step in and watch Helmer. Helmer’s almost immediate initiation of conversation with Wiest when he stepped into the room indicates Helmer recognized this shift in atmosphere.

[¶ 56] The facts now before us are similar to those in Kaiser. Therein, we held Kaiser’s statement, “I think mom’s dead,” to be voluntary and “in no way coerced” as it was made by Kaiser on his own volition to a prior statement by law enforcement officers rather than in response to a question. Here, Hel-mer did not initiate his comments in response to either a statement or question by Wiest. Helmer commenced the conversation of his own accord. Thus the facts here support a finding of voluntariness even more so than in Kaiser.

[¶ 57] “The Fifth Amendment ... is not ... concerned with moral and psychological pressures to confess emanating from sources other than official coercion.” Elstad, 470 U.S. at 304-05, 105 S.Ct. at 1290, 84 L.Ed.2d at 229. “Volunteered statements of any kind are not barred by the Fifth Amendment....” Miranda v. State of Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694, 726 (1966). Helmer’s comments to Wiest about Helmer’s religious beliefs and divine forgiveness for such a crime reflect such an outpouring of which the Fifth Amendment is not concerned. I would hold Helmer’s conversation with Wiest was voluntarily made and was sufficiently attenuated from the inadmissible statements to remove the taint in this instance.

[¶ 58] MILLER, C.J., joins this special writing.

Helmer's juvenile record demonstrates he was arrested for eight counts of intentional damage to private property, and at other times, for driving a vehicle, not his own, over a cliff, and for stealing hood ornaments. As an adult, Helmer was arrested for eluding a police officer and possession of stolen property. One year later, Helmer was arrested for grand theft, intentional damage to property, and eluding a police officer.