David L. Butzin v. Frank W. Wood, Warden of Minnesota Correctional Facility, Oak Park Heights and the State of Minnesota

886 F.2d 1016

Opinions

HENLEY, Senior Circuit Judge.

David L. Butzin appeals from the district court’s¹ denial of his petition for a writ of habeas corpus. Butzin’s petition chal lenged his two-count state conviction of the second degree murders of his pregnant wife, Melody, and eighteen-month-old son, Alex. In this appeal, Butzin contends that he was given inadequate Miranda warnings by the police, inasmuch as they did not expressly inform him that he had a right to have counsel present during interrogation. We affirm.

The facts of this case are set forth in the Minnesota Court of Appeals opinion affirming Butzin’s convictions, State v. Butzin, 404 N.W.2d 819 (Minn.App.1987), and will not be fully recounted here. The bodies of Melody and Alex were found in Cat Creek in Wadena County, Minnesota. Initially the sheriff believed their deaths were accidental. A few days later, however, an insurance agent informed the sheriffs office that Butzin had insured Melody’s life for $100,000.00 the day before she died. It was ultimately discovered that Melody’s life was insured for a total of $239,000.00, and Alex’s life for $6,000.00. Butzin was the primary beneficiary of all the insurance policies, and most of the coverage on Melody was purchased not long before she died.

The sheriff’s office contacted Butzin’s father-in-law and asked him to tell Butzin that the sheriff wanted to question him at about 1:00 o’clock on August 26, 1985, at the Wadena County Law Enforcement Center. Butzin showed up as requested, and was questioned about the deaths of his wife and son. He was not arrested initially, but was given the following warning: “David, you have the right to remain silent. Anything you say can be used against you in court. You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you at no cost.” But-zin then proceeded to answer the questions put to him by Chief Deputy Sheriff Steven Young. Also present to assist with the questioning was Gary Nelson, a retired Minnesota Bureau of Criminal Apprehension Agent. The questioning took place in Deputy Young’s office, and proceeded for approximately one hour. During this time Butzin stated that he did not know when Melody and Alex had died.

He was then interviewed for twenty-five minutes to an hour by Richard Polipnick, a private investigator the County had hired to assist in the investigation.² Nelson and Young then returned for approximately fifteen to twenty minutes and continued their questioning, then left. Polipnick came back into the office, where he found appellant with his head in his hands, slumped over, with tears in his eyes. Polipnick sat down in front of Butzin, placed his hands on Butzin’s shoulders and said, “David, you’re in a world of hurt, aren’t you”? Butzin nodded his head yes. Polipnick then said, “Why don’t you tell me what happened out there at Cat Creek, David”? Butzin answered, “I lied, I was there.” He claimed that Melody and Alex had fallen into the water and that he had panicked and run away. Polipnick left the office and informed Young and Nelson of Butzin’s statements. Young and Nelson reentered the office. Butzin told them that his statement to Polipnick was not entirely true, because he had bumped Melody into the creek and then watched Melody and Alex float down the stream. He then gave a written statement claiming that Melody and Alex fell into the stream after he slipped and ran into them; that he then went back up to the road and “just watched them go down the river”; and that he then unsuccessfully tried to save them. After signing the statement, Butzin was arrested.

He spent the night in jail, and after breakfast the next morning asked to speak with Deputy Young. He told Young that he had “not been totally honest the day before.” Young asked Butzin if he remembered the rights that had been read to him the day before, and he replied that he did. Young then asked Butzin what it was that he had not been honest about. Butzin replied that he had not accidentally bumped Melody, but that he had pushed her into the creek because he wanted her to die and that he knew she could not swim.

Butzin challenges the admissibility of his statements on the ground that he was not expressly advised of his right to have counsel present during interrogation. See Miranda v. Arizona, 384 U.S. 436, 471, 86 S.Ct. 1602, 1626, 16 L.Ed.2d 694 (1966). However, Miranda warnings are required only when a suspect is in custody and is about to be subjected to interrogation. Rhode Island v. Innis, 446 U.S. 291, 300, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980). We do not believe that Butzin’s ultimate confession, although he was unquestionably in custody at the time he made it, was the product of interrogation. The Minnesota Court of Appeals’ opinion indicates in its statement of facts that Butzin initiated the conversation with Deputy Young. 404 N.W.2d at 823. The State reasserts in its appellate brief that Butzin requested to see Deputy Young, and Butzin does not contest this on appeal, although he apparently did contest it at trial. Id. The state court’s factual determinations are entitled to a presumption of correctness in a habeas proceeding, 28 U.S.C. § 2254(d); Sumner v. Mata, 449 U.S. 539, 545-47, 101 S.Ct. 764, 768-69, 66 L.Ed.2d 722 (1981), and we presume that Butzin initiated the conversation with Deputy Young.

“ ‘Interrogation,’ as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.” Innis, 446 U.S. at 300, 100 S.Ct. at 1689. The Supreme Court in Miranda expressly stated that “[volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.” 384 U.S. at 478, 86 S.Ct. at 1630. Accordingly, we have held that statements volunteered by a suspect during the course of routine arrest procedures were not the products of interrogation, United States v. Webster, 769 F.2d 487, 491-92 (8th Cir.1985), and that custodial statements made on the suspect’s own initiative are not subject to the safeguards of Miranda, Stumes v. Solem, 752 F.2d 317, 322-23 (8th Cir.1985). “Miranda does not protect an accused ‘from a spontaneous admission made under circumstances not induced by the investigating officers or during a conversation not initiated by the officers.' ” United States v. Rhodes, 779 F.2d 1019, 1032 (4th Cir.1985), cert. denied, 476 U.S. 1182, 106 S.Ct. 2916, 91 L.Ed.2d 545 (1986) (quoting United States v. Grant, 549 F.2d 942, 946 (4th Cir.), cert. denied, 432 U.S. 908, 97 S.Ct. 2955, 53 L.Ed.2d 1081, vacated on other grounds, 435 U.S. 912, 98 S.Ct. 1463, 55 L.Ed.2d 502 (1978)); accord, United States v. Foskey, 636 F.2d 517, 521-22 (D.C.Cir.1980) (post-arrest statements, spontaneously volunteered, were not made in the course of interrogation). Nor did Deputy Young’s request for clarification of Butzin’s remark that he had not been totally honest trigger the need for warnings. An officer’s attempt to seek clarification of an ambiguous statement is not generally construed as interrogation for Miranda purposes if the question does not “enhance the defendant’s guilt or raise the offense to a higher degree_” W.R. LaFave & J.H. Israel, 1 Criminal Procedure § 6.7, at 514 (1984); see Rhodes, 779 F.2d at 1032.

Moreover, Butzin’s confession was not in response to the interrogation oí the day before. It was he who asked to renew his contact with Deputy Young after a night’s sleep and breakfast in the morning. He had already made a statement, but was at that point not under great pressure from the authorities to say any more. He had been warned the day before of his right to remain silent, and that his statements could be used against him. He stated that he remembered these warnings. Apparently for his own reasons he wanted to give an honest account of the events leading to the deaths of his wife and child. Cf. Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985) (passim) (prior unwarned but voluntary statement does not render inadmissible all subsequent voluntary statements). Thus, we conclude that the morning confession was not the product of interrogation, and was admissible regardless of whether the Miranda warnings were adequate.

We turn now to the prior statements made the day before. It is questioned whether these statements, clearly the product of interrogation, were made in a custodial setting. We do not reach that question, however, as we find that any error in the admission of the statements would be harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); Howard v. Pung, 862 F.2d 1348, 1351-52 (8th Cir.1988), cert. denied, — U.S.-, 109 S.Ct. 3247, 106 L.Ed.2d 593 (1989). Butzin concedes in his appellate brief that his first confession was a “relatively innocuous, cryptic disclosure.... Butzin makes it sound accidental.... His first confession was not the stuff of premeditated murder, rather, arguably it’s [a] manslaughter type confession and it was certainly not what convicted him. The second statement ... provided the proof of intent.” We agree with this characterization. Moreover, Butzin voluntarily made two other inculpatory statements that were introduced at trial and which he does not challenge on appeal. In the first of these statements, Butzin told Melody’s father that he was responsible for Melody going into the water. The second admission came as he was being transported to court, when he inquired of Deputy Young about the strength of the case against him. Young told Butzin that he believed the case was solid, but that the jury would have to decide. Butzin then stated, “I know that I am guilty and that I have done wrong, but I have to go to court to beat it. It’s the best chance I have.” Finally, the jury heard the evidence of the insurance coverage Butzin had taken out on his wife shortly before her death. In light of the overwhelming evidence of Butzin’s guilt, Howard, 862 F.2d at 1351-52, we conclude that the admission of the first statement, if error, was harmless beyond a reasonable doubt.

Finally, we reject Butzin’s claim that his confessions were involuntary. Our review of the record reveals no threats, promises, violence, or other improper conduct on the part of the police in interrogating Butzin. Rachlin v. United States, 723 F.2d 1373, 1377 (8th Cir.1983).

For the foregoing reasons, the judgment of the district court is affirmed.

Footnotes

1

. The Honorable Robert G. Renner, United States District Judge, District of Minnesota.

2

. The record reveals that Polipnick may have given Butzin a Miranda warning, but the substance of that warning is not part of the record on appeal. The State apparently places no reliance on Polipnick’s warning; neither party makes any reference to it in the argument portions of the briefs.