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State v. Leniart

Court of Appeals of Connecticut

June 14, 2016

STATE OF CONNECTICUT
v.
GEORGE MICHAEL LENIART

          Argued October 8, 2015

         Appeal from Superior Court, judicial district of New London, Jongbloed, J.

          Lauren Weisfeld, senior assistant public defender, for the appellant (defendant).

          Stephen M. Carney, senior assistant state’s attorney, with whom, on the brief, was Michael L. Regan, state’s attorney, for the appellee (state).

          Sheldon, Prescott and Flynn, Js.

          OPINION

          PRESCOTT, J.

         The defendant, George Michael Leniart, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a), [1] and three counts of capital felony in violation of General Statutes (Rev. to 1995) § 53a-54b (5), (7) and (9), as amended by Public Acts 1995, No. 95-16, § 4.[2] The defendant claims that the evidence was insufficient to prove beyond a reasonable doubt each of the crimes of which he was convicted. He also claims that the trial court improperly excluded a videotape of an interview conducted by police of a crucial prosecution witness just prior to the administration of a polygraph examination, admitted evidence of prior misconduct committed by the defendant, and excluded expert testimony that he proffered regarding the lack of reliability of jailhouse informant testimony. Although we disagree with the defendant’s claims regarding the sufficiency of the evidence, we agree that the court improperly excluded the polygraph pretest interview videotape, and, accordingly, we reverse the judgment of conviction and remand the case for a new trial. Because the remaining two evidentiary issues are likely to arise again on remand, we address them in turn. Although we disagree with the defendant that the court improperly admitted evidence of his prior misconduct, we agree that the court improperly excluded expert testimony proffered by the defendant regarding the reliability of jailhouse informant testimony.

         The jury reasonably could have found the following facts. On May 29, 1996, the victim, A.P., [3] who was fifteen years old, snuck out of her parents’ home to meet P.J. Allain, another teenager, so that they could smoke marijuana, drink alcohol, and have sex. The two teenagers were picked up by the defendant, who at the time was thirty-three years old. They then drove to a secluded location in the woods.

         A.P. and Allain drank beer, smoked marijuana, and kissed in the defendant’s pickup truck. The defendant took Allain aside and told him that he wanted ‘‘to do her’’ and that he ‘‘wanted a body for the altar.’’ The defendant had previously told Allain that he was in a cult.

         Allain returned to the truck and told A.P. that she was going to be raped by the defendant. A.P. asked that she have sex only with Allain. Allain then removed her clothes and had sex with her in the truck while the defendant watched through the windshield. After Allain and A.P. finished having sex, the defendant climbed into the truck and sexually assaulted A.P. During the assault, Allain kept his hand on A.P.’s breast but could not look at her because he felt horrible. Afterward, A.P. pretended not to be upset so that the defendant would not harm her further.

         The defendant then proceeded to drive the teenagers toward home. The defendant dropped off Allain near his home. After Allain was no longer present, the defendant drove A.P. to an unknown location, where he pretended to run out of gas. The defendant forced A.P. to run into the woods with him, and at times he had to drag her along. The defendant then choked A.P., killed her, and disposed of her body in an unknown location. A.P. was never seen again by anyone despite a nationwide search by law enforcement for many years, and her remains have never been recovered.

         The defendant admitted to four individuals, on different occasions, to killing A.P. and/or to disposing of her body: Allain[4] and three inmates-Michael Douton, [5] Zee Ching, [6] and Kenneth Buckingham.[7] The defendant was incarcerated with Douton, Ching, and Buckingham at various times while he was serving a sentence for sexually assaulting K.S., a thirteen year old girl, approximately six months prior to the disappearance of A.P.

         A warrant was issued for the defendant’s arrest on March 28, 2008, and the defendant was subsequently charged in a substitute, long form information with the following crimes: murder in violation of § 53a-54a; capital felony in violation of § 53a-54b (5) (kidnap-murder); capital felony in violation of § 53a-54b (7) (murder in the course of sexual assault); and capital felony in violation of § 53a-54b (9) (murder of person under age sixteen).

         The matter was tried to a jury, Jongbloed, J., presiding. On March 2, 2010, the jury returned a verdict of guilty on all counts. On June 22, 2010, the court merged the verdicts into a single conviction of capital felony and sentenced the defendant to a term of life imprisonment without the possibility of release. This appeal followed. Additional facts and procedural history shall be set forth as necessary to address the claims of the defendant.

         I

         SUFFICIENCY OF THE EVIDENCE

         The defendant first claims that the evidence was insufficient to prove beyond a reasonable doubt any of the charges of which he was convicted. Specifically, the defendant asserts that the evidence was insufficient to establish beyond a reasonable doubt that (1) A.P. is dead, because, pursuant to the corpus delicti rule, the defendant’s alleged confessions may not be used as evidence to prove that A.P. is dead in the absence of independent proof of her death; (2) the defendant intended to kill A.P.; (3) he murdered A.P. during the commission of a sexual assault because there was no evidence independent of his confessions that he sexually assaulted A.P.; and (4) he murdered A.P. in the course of a kidnapping or before she could be returned to safety.[8] For the reasons that follow, the defendant cannot prevail on his sufficiency of the evidence claims.

         A

         We first turn to the defendant’s claim that the evidence was insufficient to prove beyond a reasonable doubt that A.P. is dead because, in his view, the only evidence of A.P.’s death is the testimony of four of the state’s witnesses that the defendant separately confessed to each of them that he killed A.P. and disposed of her body. The defendant argues that, under these circumstances, the common-law corpus delicti rule prevents him from being convicted of murder and capital felony solely on the basis of his uncorroborated confessions and in the absence of independent extrinsic evidence of the fact of death of the alleged victim.

         In response, the state argues that the evidence is sufficient to prove A.P.’s death beyond a reasonable doubt because (1) the defendant cannot rely on the corpus delicti rule, as he failed to object to the admission of his confessions at trial; and (2), under Connecticut’s formulation of the corpus delicti rule, a defendant’s confession may be used to prove the corpus delicti, i.e., the death of the victim, as long as there is corroborating evidence that substantially establishes the trustworthiness of the defendant’s confession. Such corroborating evidence, the state contends, need not itself independently establish the corpus delicti, may be circumstantial in nature, and need not prove any element of the offense beyond a reasonable doubt.

         We reject the defendant’s claim that the evidence was insufficient to prove A.P.’s death. We reach this conclusion primarily for two reasons. First, we conclude that under Connecticut law the corpus delicti rule is an evidentiary rule regarding the admissibility of confessions rather than a substantive rule of criminal law to be applied in reviewing the sufficiency of the state’s evidence. In this case, the defendant did not object to the admissibility of his confessions at trial and has not challenged their admissibility on appeal.[9]Accordingly, we conclude that because the defendant has not challenged the admission of the confessions, the confessions may be considered by this court in analyzing the sufficiency of the state’s evidence without reference to the corpus delicti rule.

         Second, we conclude that, even if the defendant is permitted to raise the corpus delicti rule as part of his sufficiency of the evidence claim, the sufficiency claim fails because substantial evidence, circumstantial or otherwise, was admitted at trial to corroborate both the trustworthiness of his confessions and the fact of A.P.’s death. Asa result, because the defendant’s confessions may be considered by this court in assessing the sufficiency of the evidence, we apply the traditional standard of review in assessing the evidence and conclude that the evidence was sufficient for the jury to conclude beyond a reasonable doubt that A.P. is dead.

         We begin our analysis by reviewing the purpose, history, and present scope of the corpus delicti rule in Connecticut. The corpus delicti rule, which is often also referred to as the corroboration rule, exists ‘‘to protect against conviction of offenses that have not, in fact, occurred, in other words, to prevent errors in convictions based solely upon untrue confessions to nonexistent crimes.’’ State v. Arnold, 201 Conn. 276, 287, 514 A.2d 330 (1986). An early version of Connecticut’s corroboration rule was extensively discussed in State v. Doucette, 147 Conn. 95, 98–100, 157 A.2d 487 (1959), overruled in part by State v. Tillman, 152 Conn. 15, 20, 202 A.2d 494 (1964). The court in Doucette described the rule as follows: ‘‘[T]he corpus delicti [that is, that the crime charged has been committed by someone] cannot be established by the extra-judicial confession of the defendant unsupported by corroborative evidence. . . .

         ‘‘The Connecticut rule, which we reaffirm, is that, although the confession is evidence tending to prove both the fact that the crime [charged] was committed [by someone, that is, the corpus delicti] and the defendant’s agency therein, it is not sufficient of itself to prove the former, and, without evidence [from another source] of facts also tending to prove the corpus delicti, it is not enough to warrant a conviction; and that there must be such extrinsic corroborative evidence as will, when taken in connection with the confession, establish the corpus delicti in the mind of the trier beyond a reasonable doubt. . . . The independent evidence must tend to establish that the crime charged has been committed and must be material and substantial, but need not be such as would establish the corpus delicti beyond a reasonable doubt apart from the confession. . . . Properly this [extrinsic] evidence should be introduced and the court satisfied of its substantial character and sufficiency to render the confession admissible, before the latter is allowed in evidence. State v. LaLouche, [116 Conn. 691, 695, 166 A. 252 (1933)].’’ (Citations omitted; emphasis altered; internal quotation marks omitted.) State v. Doucette, supra, 147 Conn. 98–100. In Doucette, the court concluded that the sum total of the evidence presented by the state of the corpus delicti was inadequate to constitute ‘‘material and substantial evidence of the corpus delicti under our rule [and we] are therefore constrained to find error in the admission of [the evidence of the defendant’s extra-judicial confession].’’ (Emphasis added; internal quotation marks omitted.) Id., 106.

         In 1964, our Supreme Court in State v. Tillman, 152 Conn. 15, 18, 202 A.2d 494 (1964), decided that Connecticut’s traditional corpus delicti rule needed refinement in part because of ‘‘a lack of harmony in the decisions as to the extent and nature of the corroborative or extrinsic evidence required, both as a prerequisite to the admission of a confession into evidence and as a prerequisite to a conviction where confessions have been introduced.’’ After examining authorities from numerous jurisdictions, the court in Tillman concluded that Connecticut’s ‘‘difficulties in the application of our corroboration rule largely stem from our present definition of corpus delicti and dictate its abandonment.’’ Id., 20. Instead, the court adopted Professor John Henry Wigmore’s definition of the corpus delicti as being ‘‘the occurrence of the specific kind of loss or injury embraced in the crime charged.’’ Id. Specifically, the court stated that, in a homicide case, ‘‘the corpus delicti is the fact of the death, whether or not feloniously caused, of the person whom the accused is charged with having killed or murdered.’’[10] Id.

         The court in Tillman also emphasized that although the corroborating evidence must be material and substantial, it may be circumstantial in nature. Id.[11] After applying the new definition of corpus delicti to the corroboration evidence in the case before it, the court in Tillman concluded that there ‘‘was no error in the admission or use of the confessions.’’ Id., 21.

         The next major refinement of Connecticut’s corpus delicti rule occurred in State v. Harris, 215 Conn. 189, 192–97, 575 A.2d 223 (1990). In Harris, the defendant was charged with operating a motor vehicle while under the influence of liquor. Id., 190. At trial, the court granted a motion in limine to exclude inculpatory statements made by the defendant because the state had failed to produce material and substantial independent evidence of the corpus delicti. Id., 191. The state appealed.

         Our Supreme Court reversed the judgment of the trial court, holding that the corpus delicti rule should not have barred the admission of the defendant’s inculpatory statements. Id., 196. In so doing, the court reasoned that the corpus delicti rule as formulated in State v. Tillman, supra, 152 Conn. 20, which required corroboration of ‘‘the specific kind of loss or injury embraced in the crime charged, ’’ should not apply in Harris because the crime of operating a motor vehicle while under the influence of liquor proscribes only conduct. See State v. Harris, supra, 215 Conn. 193. The court in Harris reasoned that ‘‘when the crime charged prohibits certain conduct but does not encompass a specific harm, loss or injury, a different approach to the corpus delicti rule, other than that enunciated in Tillman, is required.’’ Id.

         Instead of following the traditional rule, the court in Harris adopted the formulation of the corroboration rule set forth in Opper v. United States, 348 U.S. 84, 93, 75 S.Ct. 158, 99 L.Ed. 101 (1954), which held that ‘‘the corroborative evidence need not be sufficient, independent of the statements, to establish the corpus delicti. It is [only] necessary, therefore, to require the

         Government . . . to establish the trustworthiness of the [defendant’s] statement.’’ (Emphasis omitted; internal quotation marks omitted.) State v. Harris, supra, 215 Conn. 193–94. Thus, ‘‘[i]f . . . there is substantial extrinsic evidence tending to demonstrate that the statements of the defendant are true, i.e., trustworthy, the statements are admissible. . . . The corpus delicti of the crime may then be established by the statements of the accused and the extrinsic evidence considered together.’’ (Citation omitted; internal quotation marks omitted.) Id., 195.

         Our Supreme Court’s last major reformulation of our corroboration rule came in State v. Hafford, 252 Conn. 274, 746 A.2d 150, cert. denied, 531 U.S. 855, 121 S.Ct. 136, 148 L.Ed.2d 89 (2000). In Hafford, the defendant at trial filed a motion to exclude a portion of his confession in which he stated that he sexually assaulted the victim before murdering her. Id., 314. The trial court, relying on State v. Harris, supra, 215 Conn. 189, denied the motion, finding that there was sufficient corroborating evidence to establish that the defendant’s confession was trustworthy. State v. Hafford, supra, 314–15.

         On appeal, the defendant claimed that, because he was charged with the felony of sexual assault, [12] which requires proof of a specific loss or injury, the trial court improperly applied the version of the corroboration rule set forth in Harris. Id., 315. Instead, the defendant argued in Hafford, the trial court should have applied the corroboration rule set forth in State v. Tillman, supra, 152 Conn. 15, and, before admitting the confession, required independent corroborating evidence of the corpus delicti itself, i.e., that the victim was sexually assaulted, rather than evidence that did not relate to the corpus delicti but otherwise corroborated the reliability of the defendant’s admission that he sexually assaulted her. State v. Hafford, supra, 252 Conn. 315.

         In rejecting the defendant’s claim, our Supreme Court concluded that the same version of the corroboration rule adopted in Harris should be extended to all types of crimes, not just those that prohibit conduct and do not require demonstration of a specific loss or injury. Id., 317. In other words, in all criminal cases in which the corroboration rule is raised, the state need only present extrinsic corroborating evidence of the trustworthiness of the defendant’s confession and need not offer material and substantial independent evidence of the corpus delicti itself. The court held that as long as a sufficient showing has been made that the confession is trustworthy, the confession itself may be used to meet the state’s burden to prove beyond a reasonable doubt the corpus delicti and all elements of the offense.

         In a somewhat cryptic footnote, however, the court in Hafford provides what can be described as commentary on its newly minted holding, using language that the concurring opinion here appears to construe as carving out a limited exception for homicide cases. In that footnote, the court stated: ‘‘We note, however, that proving the trustworthiness of a defendant’s confession to a crime resulting in injury or loss often will require evidence of that injury or loss. For example, a confession to a homicide likely would not be trustworthy without evidence of the victim’s death.’’ (Emphasis added.) Id., 317 n.23.

         We have several observations about this footnote. First, by its use of the adverbs ‘‘often’’ and ‘‘likely, ’’ our Supreme Court appeared to recognize at least the possibility that in some homicide cases, the state could be successful in establishing that a defendant’s confession is sufficiently trustworthy without independent, extrinsic evidence of the victim’s death. We are unconvinced that the footnote was intended to convey any deviation from the court’s holding. Rather, the footnote simply conveyed that in many cases involving an injury or loss, the trustworthiness of the confession might be most easily and sufficiently corroborated through evidence of the corpus delicti itself. That statement, however, does not alter the court’s holding that such evidence is no longer mandatory if other sufficient corroborating evidence is available.

         Second, unlike the former version of the corroboration rule expressed in Tillman, the touchstone of the court’s analysis in Hafford is the trustworthiness of the confession rather than an evaluation of whether the state has presented independent, material, and substantial evidence of the corpus delicti itself. We do not read the footnote, which contains no analysis, to change that focus.

         Third, the footnote is dictum. ‘‘Dictum is generally defined as [a]n expression in an opinion which is not necessary to support the decision reached by the court. . . . A statement in an opinion with respect to a matter which is not an issue necessary for decision. . . . Our Supreme Court has instructed that dicta have no precedential value.’’ (Citation omitted; internal quotation marks omitted.) State v. Torres, 85 Conn.App. 303, 320, 858 A.2d 776, cert. denied, 271 Conn. 947, 861 A.2d 1179 (2004). In Hafford, the victim’s body was found and thus there was undeniable evidence of the victim’s death. As a result, there was no need for the court to opine whether a confession to a homicide may or may not be trustworthy without evidence of the victim’s death. Moreover, the footnote has never been relied upon by our Supreme Court or this court. In any event, even if we were to conclude that in homicide cases the trustworthiness of a confession may only be sufficiently established by extrinsic evidence of the victim’s death, we conclude, for reasons that we will subsequently discuss at greater length, that the state in this case has offered sufficient independent evidence of A.P.’s death, along with other facts, to establish both the trustworthiness of the defendant’s confession and the fact of death.

         Having ascertained and articulated the specific version of the corroboration rule that is to be applied, we next turn to the issue of whether Connecticut’s corroboration rule is an evidentiary rule that must be raised by objecting to the admission of the defendant’s confessions at trial, or whether it is a substantive rule of criminal law that may be raised for the first time after the confessions are introduced, either at trial or in post verdict proceedings, including on appeal.[13] This question is not academic because if the corroboration rule is a substantive rule of criminal law, i.e., an implicit element of the state’s case for which there must be sufficient evidence, then the state’s failure to establish the corpus delicti could entitle a defendant to a judgment of acquittal. If the corroboration rule is simply an evidentiary rule that prohibits the admission of a defendant’s confession until the state has offered material and substantial evidence to establish the trustworthiness of the defendant’s confession, then any reversible error by the trial court in applying the rule could only result in a new trial for a defendant rather than a judgment of acquittal. We conclude that Connecticut’s corroboration rule is properly understood and applied as an evidentiary rule rather than a substantive rule of criminal law.

         We begin our analysis by reviewing Connecticut authority on this point. Prior to 1988, our Supreme Court typically applied the corroboration rule in the context in which the defendant raised it. In other words, if a defendant at trial objected to the admission of his confession on the ground that the state had not satisfied the corpus delicti rule, then, on appeal, our courts treated the claim as an evidentiary issue. See, e.g., State v. Hafford, supra, 252 Conn. 314 (‘‘The defendant’s final claim is that . . . [his] confession was inadmissible under the corpus delicti rule. We disagree.’’); State v. Tillman, supra, 152 Conn. 17–21 (‘‘The defendant objected to the admission . . . of each of these confessions on the ground that the state had failed to offer sufficient preliminary proof of the corpus delicti to render any of the confessions admissible . . . . [T]here was no error . . . .’’ [Citations omitted.]). If, however, the defendant raised the corroboration rule as part of a sufficiency of evidence claim, then our courts reviewed the claim under that rubric. See, e.g., State v. Arnold, supra, 201 Conn. 286 (‘‘a naked extra judicial confession of guilt by one accused of crime is not sufficient to sustain a conviction when unsupported by any corroborative evidence’’ [emphasis in original; internal quotation marks omitted]).

         In 1988, our Supreme Court decided State v. Uretek, Inc., 207 Conn. 706, 543 A.2d 709 (1988). In Uretek, Inc., the defendant company and its vice president, John Andrews, were prosecuted for knowingly storing hazardous waste without a permit. Id., 707. At trial, the defendants did not challenge the admission of certain inculpatory extrajudicial statements made by Andrews. Id., 713. On appeal, the defendants challenged the sufficiency of the evidence. Id., 707. As part of their evidentiary sufficiency claims, the defendants contended that the statements made by Andrews could not be considered because the state had failed to present independent evidence to establish the corpus delicti. Id., 713.

         Our Supreme Court, however, declined to review the corpus delicti claim because the defendant company had failed to object to the admission of the statements at trial or to move for a judgment of acquittal on the basis of a lack of corpus delicti evidence. Id. The court then stated that it would not review the unpreserved corpus delicti claim because it did ‘‘not implicate a fundamental constitutional right’’ and, thus, did not satisfy the requirements for review of unpreserved claims set forth in State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), the precursor to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015). State v. Uretek, Inc., supra, 207 Conn. 713.

         Less than one year later, however, our Supreme Court, in State v. Oliveras, 210 Conn. 751, 757, 557 A.2d 534 (1989), was again confronted with a sufficiency of the evidence claim that relied upon the corpus delicti rule. At trial, the defendant had failed to object to the admission of his inculpatory statement or raise the corpus delicti rule in his motion for a judgment of acquittal. Although the court recognized that in State v. Uretek, Inc., supra, 207 Conn. 713, it had ‘‘summarily’’ declined to review an unpreserved corpus delicti claim because it was not of constitutional magnitude; State v. Oliveras, supra, 756; the court in Oliveras stated that ‘‘[w]e need not now decide whether a claim that there was no proof of the corpus delicti . . . from evidence independent of the confession or admissions of an accused would warrant review under Evans as implicating a constitutional right.’’ Id., 757.[14] Instead, the court chose to review the unpreserved claim and concluded that there was ample evidence of the victim’s death[15] and, therefore, that the defendant’s confession could be used to prove the other elements of the offense. Id. In choosing to review the claim, the court did not indicate whether it considered the claim to be unpreserved because the defendant had failed to object to the admission of his confession.

         Despite the language in Oliveras, this court previously has concluded that it is bound by our Supreme Court’s holding in Uretek, Inc., that the corroboration rule is not of constitutional magnitude and, thus, an unpreserved corpus delicti claim founders on the second prong of Golding. See State v. Heredia, 139 Conn.App. 319, 324–25, 55 A.3d 598 (2012), cert. denied, 307

         Conn. 952, 58 A.3d 975 (2013). As we stated in Heredia, ‘‘[o]ur Supreme Court has held that corpus delicti does not implicate a fundamental constitutional right sufficient to satisfy the standard set forth in Golding. In State v. Uretek, Inc., [supra, 207 Conn. 713], our Supreme Court summarily rejected a claim that the lack of extrinsic corroboration of an admission that was vital to proving an element of the offense implicated a fundamental constitutional right and, therefore, concluded that such a claim did not qualify for review. . . . State v. Oliveras, [supra, 210 Conn. 756] . . . . Although our Supreme Court in Oliveras retreated from the holding in Uretek, Inc., by declining to decide whether [an unpreserved] claim that there was no proof of the corpus delicti . . . would warrant review . . . as implicating a constitutional right; [id., 757]; and this court in State v. McArthur, [96 Conn.App. 155, 166, 899 A.2d 691, cert. denied, 280 Conn. 908, 907 A.2d 93 (2006)], assume[d] . . . that the defendant’s [unpre-served corpus delicti] claim [was] constitutional in nature in order to reach its merits, Uretek, Inc., has not been expressly overruled. . . . Accordingly, we conclude that the defendant has failed to show that his claim is of constitutional magnitude as required by the second Golding prong.’’ (Citations omitted; internal quotation marks omitted.) State v. Heredia, supra, 324–25.[16]

         The defendant argues that Heredia is wrongly decided and should be overruled because (1) other jurisdictions have given unpreserved corpus delicti claims appellate review, and (2) Uretek, Inc., is not binding authority because our Supreme Court retreated in Oliveras from its holding in Uretek, Inc. We decline to overrule Heredia because ‘‘[t]his court’s policy dictates that one panel should not, on its own, [overrule] the ruling of a previous panel. The [overruling] may be accomplished only if the appeal is heard en banc.’’ (Internal quotation marks omitted.) State v. Ortiz, 133 Conn.App. 118, 122, 33 A.3d 862 (2012), aff’d, 312 Conn. 551, 93 A.3d 1128 (2014). Moreover, we agree with this court’s conclusion in Heredia that because the Supreme Court in Oliveras did not overturn its prior decision in Uretek, Inc., this court remains obligated to follow Uretek, Inc.

         Even if we were to conclude that we are not bound by Uretek, Inc., and thus that the law on this issue remains unsettled in Connecticut, we would still reject the defendant’s claim that he is entitled to rely on the corroboration rule on appeal despite his failure to object to the admission of his alleged confessions at trial and his argument that the corroboration rule is a substantive rule of criminal law. The question of whether the corroboration rule is an evidentiary rule or a substantive rule of criminal law has been the subject of significant discussion in other jurisdictions and by commentators. Professor Wayne LaFave aptly describes this debate as follows: ‘‘In its traditional form, the corpus delicti rule may have barred the government from introducing the defendant’s confession until it had first proved the corpus delicti. However, it is now generally accepted that a trial judge has the discretion to vary the order of proof, meaning that the government may introduce the defendant’s confession before it has introduced the additional evidence that will establish the corpus delicti, so long as the corpus delicti is proved before the government rests. Aside from the order of proof, there is also the question of whether the corpus delicti rule simply defines the evidentiary foundation needed to support the introduction of the defendant’s confession, so that the decision is to be made by the trial judge before the case is submitted to the jury, or whether on the other hand it establishes an implicit element of the government’s proof, so that the trial judge’s evidentiary ruling would be merely preliminary to the jury’s later determination of corpus delicti. There is a split of authority between the ‘evidentiary foundation’ and ‘implicit element’ approaches, though apparently most courts follow the latter view.’’ (Emphasis omitted; footnotes omitted.) 1 W. LaFave, Substantive Criminal Law (2d Ed. 2003) § 1.4 (b), p. 31; compare, e.g., Langevin v. State, 258 P.3d 866, 869 (Alaska App. 2011) (‘‘Alaska cases . . . have followed the ‘evidentiary foundation’ approach to corpus delicti’’); State v. Fundalewicz, 49 A.3d 1277, 1278–79 (Me. 2012) (credible evidence of corpus delicti must be presented before defendant’s confession is admissible); State v. Sweat, 366 N.C. 79, 88, 727 S.E.2d 691 (2012) (‘‘corpus delicti doctrine is a legal question of admissibility’’); with People v. LaRosa, 293 P.3d 567, 578–79 (Colo. 2013) (en banc) (treating corpus delicti doctrine as rule affecting sufficiency of evidence); State v. Reddish, 181 N.J. 553, 617–19, 859 A.2d 1173 (2004) (reviewing whether trial court properly denied defendant’s motion for judgment of acquittal); Commonwealth v. Byrd, 490 Pa. 544, 556, 417 A.2d 173 (1980) (given limited nature of corpus delicti requirement, state produced sufficient independent evidence to support conviction of robbery, conspiracy). Professor LaFave sides with the evidentiary foundation formulation of the rule.[17] See 1 W. LaFave, supra, p. 31.

         Some federal courts have characterized the corroboration rule as a hybrid rule. For example, the United States Court of Appeals for the Seventh Circuit recently stated: ‘‘The corroboration principle sometimes comes into play in the trial court’s decision to admit the defendant’s confession and also if he later challenges the sufficiency of the evidence.’’ United States v. McDowell, 687 F.3d 904, 912 (7th Cir. 2012); see also United States v. Dickerson, 163 F.3d 639, 642 (D.C. Cir. 1999) (‘‘[t]o be sure, the corroboration requirement has also been described as a rule governing the sufficiency of the evidence’’). Even in those jurisdictions that consider the corpus delicti rule to be an implicit element of an offense or treat it as a hybrid rule, many courts have concluded that no special instructions to the jury are required. See, e.g., United States v. McDowell, supra, 912; United States v. Dickerson, supra, 642–43; United States v. Singleterry, 29 F.3d 733, 737–38 (1st Cir.), cert. denied, 513 U.S. 1048, 115 S.Ct. 647, 130 L.Ed.2d 552 (1994).

         After an extensive review of the case law and commentary, we conclude, for the following reasons, that Connecticut’s version of the corroboration rule is best characterized and applied as an evidentiary rule, under which a trial judge, upon objection, assesses the corroboration evidence offered by the state before deciding whether to admit the defendant’s inculpatory statements. First, our Supreme Court has chosen to follow the corroboration rule established for federal courts in Opper v. United States, supra, 348 U.S. 93. Under the typical application of that rule, the court exercises its traditional evidentiary gatekeeping function by deciding whether the defendant’s extrajudicial confession is sufficiently trustworthy before allowing the jury to hear the confession evidence. State v. Harris, supra, 215 Conn. 194–95. If the defendant’s inculpatory statements are admitted by the trial court, the jury typically does not receive any instruction from the court regarding the corroboration rule, but instead simply assesses whether all of the evidence is sufficient to prove the elements of the offense beyond a reasonable doubt. In so doing, the jury accords the defendant’s confession whatever evidentiary weight it concludes is appropriate after considering all relevant evidence, including evidence of its trustworthiness.[18] See Lego v. Twomey, 404 U.S. 477, 486, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972) (‘‘[j]uries [are] at liberty to disregard confessions that are insufficiently corroborated or otherwise deemed unworthy of belief’’).

         Certainly, if the corroboration rule implicated the sufficiency of the evidence, then the jury would be expected to play some role in its application but, as previously discussed, most courts following the Opper rule do not instruct the jury on the corroboration rule. Moreover, in our view, an appellate court reviewing the jury’s factual determination of guilt should not apply a sufficiency of the evidence standard that looks at the evidence at trial through a different lens than that used by the jury in deciding whether the evidence established the defendant’s guilt beyond a reasonable doubt. Instead, an appellate court should review for error the trial court’s gatekeeping determination that the defendant’s confessions are sufficiently trustworthy to permit the jury to hear them.

         Second, there is no constitutional requirement to have a corroboration rule at all. See, e.g., United States v. Dickerson, supra, 163 F.3d 643 (corroboration requirement ‘‘stems from a judicially created evidentiary rule’’). Indeed, at least one state has chosen to abandon altogether the corroboration rule; see State v. Suriner, 154 Idaho 81, 87–88, 294 P.3d 1093 (2013); and other jurisdictions, such as Connecticut, have significantly narrowed the rule over time. See State v. Hafford, supra, 252 Conn. 315–17. If the rule itself is not constitutional in nature and jurisdictions are free to abandon it altogether, then it makes little sense to characterize it as an implicit element of the state’s case that is subject to appellate review like all other unpreserved sufficiency of the evidence claims.[19]

         Finally, treating the corroboration rule as an implicit element of the offense has been criticized by courts and commentators because it places juries in the difficult position of having to determine whether the state has proven the corpus delicti or otherwise met the corroboration rule after it has heard evidence regarding the defendant’s confessions. See, e.g., Langevin v. State, supra, 258 P.3d 870; 1 W. LaFave, supra, p. 31. As the Alaska Court of Appeals explained in Langevin v. State, supra, 870: ‘‘The implicit element approach to corpus delicti is difficult to reconcile with our law’s normal view concerning a jury’s ability to dispassionately assess a confession. Confessions can be powerful evidence, and courts have traditionally feared that, once a jury hears the defendant’s confession, the jury will be unable to put aside this knowledge.

         ‘‘One example of the cautious approach taken by courts when faced with admitting defendants’ confessions is the Bruton rule-the rule that, when two or more defendants are being tried jointly, if one defendant has confessed and has implicated the co-defendants, that confession cannot be admitted unless the confessing defendant takes the stand. [See Bruton v. United States, 391 U.S. 123, 126, 128–29, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968)] . . . The [United States Supreme] Court concluded that, once the jury heard that one of the defendants had confessed and had implicated one or more co-defendants, the jurors simply could not be trusted to obey an instruction that forbade them from considering that confession when assessing the guilt of the other defendants.

         ‘‘The implicit element approach to the corpus delicti rule suffers from this same psychological difficulty. Under this approach, if the trial judge rules that the corpus delicti is satisfied, the jury would hear the defendant’s confession, only to later be asked to set the confession to one side and determine whether the government’s remaining evidence is sufficient to establish the corpus delicti. One might doubt whether jurors, having heard the defendant’s confession to a heinous crime, could dispassionately discharge this duty.’’ (Internal quotation marks omitted.)

         For these reasons, we conclude that Connecticut’s corroboration rule is a rule of admissibility to be decided by the court. A defendant who fails to challenge the admissibility of the defendant’s confession at trial is not entitled to raise the corroboration rule on appeal because (1) the evidentiary claim is not of constitutional magnitude and, thus, cannot meet Golding’s second prong; see State v. Uretek, Inc., supra, 207 Conn. 713; and (2) the rule does not implicate the sufficiency of the state’s evidence.[20] Accordingly, because the defendant did not object to the admission of the confessions, he is not entitled to raise the corroboration rule on appeal, and, thus, the confessions are substantive evidence that can be used in analyzing his sufficiency of the evidence claims.

         We turn, then, to the defendant’s claim that the evidence was insufficient to prove beyond a reasonable doubt that A.P. is dead. We begin our analysis by setting forth the traditional standard of review applicable to a sufficiency of the evidence claim. It is well settled that a defendant who ‘‘asserts an insufficiency of the evidence claim bears an arduous burden.’’ (Internal quotation marks omitted.) State v. Rodriguez, 146 Conn.App. 99, 110, 75 A.3d 798, cert. denied, 310 Conn. 948, 80 A.3d 906 (2013). ‘‘[F]or the purposes of sufficiency review . . . we review the sufficiency of the evidence as the case was tried . . . . [A] claim of insufficiency of the evidence must be tested by reviewing no less than, and no more than, the evidence introduced at trial.’’ (Internal quotation marks omitted.) State v. Nasheed, 121 Conn.App. 672, 682, 997 A.2d 623, cert. denied, 298 Conn. 902, 3 A.3d 73 (2010). ‘‘In reviewing a sufficiency of the evidence claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt . . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.’’ (Internal quotation marks omitted.) State v. Allan, 311 Conn. 1, 25, 83 A.3d 326 (2014).

         ‘‘[T]he jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . .

         ‘‘Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact . . . but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . In evaluating evidence, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [jury] may draw whatever inferences from the evidence or facts established by the evidence [that] it deems to be reasonable and logical.’’ (Internal quotation marks omitted.) State v. Papandrea, 302 Conn. 340, 348–49, 26 A.3d 75 (2011).

         Finally, on appeal, we do not ‘‘ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.’’ (Internal quotation marks omitted.) State v. Stephen J. R., 309 Conn. 586, 594, 72 A.3d 379 (2013).

         In this case, there is ample evidence from which the jury reasonably could have concluded beyond a reasonable doubt that A.P. is dead. First, the defendant admitted to Allain on the day following her disappearance that he had choked A.P. to death and disposed of her corpse in a body of water. This admission, for the reasons discussed previously in this opinion, may be used as substantive evidence that she is dead. Similarly, the defendant told Douton, a fellow inmate, that ‘‘she was in the river’’ and that ‘‘they would never convict him because they would never find [her] body.’’ The defendant also told his cellmate, Ching, about a teenage girl whom he had raped and killed on his boat before disposing of her body by hiding it in a well and later dumping it in Long Island Sound. In the same vein, but on a different occasion, he told another inmate, Buckingham, that he had accidently choked a young girl to death while having sex with her and ‘‘disposed of her off of a boat that he had or had access to out in the Sound.’’ Although these confessions certainly differed from one another in certain respects, the core facts admitted in them were the same: that he killed A.P. by choking her, then disposed of her remains in a body of water.

         Additionally, there is evidence independent of the defendant’s confessions from which the jury could infer that A.P. is dead. For example, A.P. disappeared during the evening hours from her house never to be seen again despite a nationwide search for her. She had been missing for more than thirteen years at the time of the defendant’s trial. She left home that evening without taking money, clothes, or other personal belongings. She was fifteen years old at the time, and the jury could infer from her age and from other evidence of her mental state and maturity that she lacked the intellectual ability and life skills that would equip her with the necessary resources to live elsewhere, undiscovered by law enforcement and her family. See People v. Ruiz, 44 Cal.3d 589, 610–11, 749 P.2d 854, 244 Cal.Rptr. 200 (although victim’s body never found, ample circumstantial evidence of her death by foul play included her abrupt disappearance, her failure to contact friends and relatives, and her abandonment of personal effects), cert. denied, 488 U.S. 871, 109 S.Ct. 186, 102 L.Ed.2d 155 (1988).

         Moreover, on the basis of the eyewitness testimony of Allain, the jury reasonably could have concluded that, on the night of her disappearance, the defendant sexually assaulted A.P. in his truck and could have inferred that the defendant, who then had a motive to kill her to avoid criminal liability for the sexual assault, also had the opportunity to kill her as the last person to be seen with her when she was alive.

         The jury was also free to credit Allain’s testimony that the defendant had stated to him while A.P. was still in his truck and before he sexually assaulted her that he was planning to kill her when he stated that he ‘‘wanted to do her’’ and that ‘‘we need a body.’’[21] This evidence may be used as substantive evidence that the defendant followed through on his plan. ‘‘[A] declaration indicating a present intention to do a particular act in the immediate future, made in apparent good faith and not for self-serving purposes, is admissible to prove that the act was in fact performed.’’ (Internal quotation marks omitted.) State v. Farnum, 275 Conn. 26, 35, 878 A.2d 1095 (2005); Conn. Code Evid. § 8-3 (4).

         Finally, the jury reasonably could have inferred that the defendant choked A.P. to death because approximately six months prior to A.P.’s disappearance, the defendant choked another girl, thirteen year old K.S., into unconsciousness during a violent sexual assault. See State v. DeJesus, 288 Conn. 418, 473, 953 A.2d 45 (2008) (evidence of prior sexual misconduct admissible to establish defendant’s ‘‘propensity or a tendency to engage in the type of aberrant and compulsive criminal sexual behavior with which he or she is charged’’); see also State v. Smith, 313 Conn. 325, 331–43, 96 A.3d 1238 (2014) (prior misconduct evidence that defendant sexually assaulted and choked third party admissible to demonstrate he choked and murdered victim during commission of sexual assault).[22]

         The defendant argues in his brief that there was some evidence before the jury that A.P. was still alive. In particular, the defendant points to a sworn statement, admitted at trial, given to the police by James Butler, a former Marine and a friend of A.P. and her family. In his statement, Butler claimed to have seen and spoken with A.P. in Virginia Beach, Virginia, after her disappearance. Butler was not called to testify at trial, however, and the police were unable to verify any of the details he supplied as to his claimed encounter with A.P. In any event, the jury certainly was free to disbelieve this evidence because it was largely dependent on hearsay and unsupported by any other evidence. In reviewing a sufficiency of the evidence claim, ‘‘we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier’s judgment] of guilty.’’ (Internal quotation marks omitted.) State v. Brown, 90 Conn.App. 835, 839, 879 A.2d 466, cert. denied, 276 Conn. 901, 884 A.2d 1026 (2005).

         In light of all of the evidence, including all of the reasonable inferences to be drawn therefrom, the fact that law enforcement failed to find her body or discover other forensic evidence that she is dead did not require the jury to conclude that the state failed to meet its burden to prove that A.P. is dead. See, e.g., State v. Estrella, 277 Conn. 458, 465, 893 A.2d 348 (2006) (upholding conviction despite lack of body and any physical or forensic evidence of death); see also an not., 65 A.L.R.6th 359, 371, § 2 (2011) (‘‘it has long been established and is almost universally recognized that the existence of a body is not necessary for a homicide conviction to be sustained’’).

         Moreover, even if the defendant is entitled to rely on the corroboration rule as part of our review of the sufficiency of the evidence, we would still conclude that independent evidence substantially corroborates the trustworthiness of his confessions.[23] As noted previously, under Opper and its progeny, the corroboration evidence (1) may be circumstantial, (2) need not rise to the level of proof beyond a reasonable doubt, and (3) need not independently establish the death of A.P. See State v. Harris, supra, 215 Conn. 194–95. The evidence previously discussed substantially corroborates the trustworthiness of the defendant’s confessions that he acted in accordance with his intention to kill A.P., as expressed to Allain. There is direct eyewitness testimony that he sexually assaulted A.P. on the night of her disappearance. He had a motive to kill her. The behavior to which he confessed, i.e., having sex with and choking a young lady victim under sixteen years of age, is consistent with his behavior in doing the same to K.S. All of this evidence leads to the inevitable conclusion that there was sufficient evidence from which the jury reasonably could have concluded that there was substantial evidence to corroborate the trustworthiness of the defendant’s confessions.

         Finally, even if footnote 23 in Hafford required the state to offer substantial evidence of A.P.’s death that is totally independent of the defendant’s confessions, we would still conclude that the state has met this burden. On the basis of the conduct and statements of the defendant during the evening hours of May 29, 1996, and the other circumstances regarding A.P.’s abrupt disappearance, all of which was supported by testimony and facts independent from his confessions, there was substantial circumstantial evidence from which the jury could conclude that A.P. is dead. Under any version of the corroboration rule, this evidence alone need not establish the death of the victim beyond a reasonable doubt, provided that this evidence and the defendant’s confessions together constitute sufficient evidence from which the jury could find beyond a reasonable doubt that A.P. is dead. We conclude that the state met that burden.

         B

         We next turn to the defendant’s claim that the evidence was insufficient to prove beyond a reasonable doubt that the defendant intended to cause the death of A.P. Specifically, the defendant argues that the evidence was sufficient at best to demonstrate an accidental homicide, but falls short of establishing intent to kill. We disagree.

         ‘‘[T]he specific intent to kill is an essential element of the crime of murder. To act intentionally, the defendant must have had the conscious objective to cause the death of the victim. . . . Because direct evidence of the accused’s state of mind is rarely available . . . intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. . . . Intent to cause death may be inferred from . . . the events leading to and immediately following the death. . . . Furthermore, it is a permissible, albeit not a necessary or mandatory, inference that a defendant intended the natural consequences of his voluntary conduct. . . . In addition, intent to kill may be inferred from evidence that the defendant had a motive to kill.’’ (Internal quotation marks omitted.) State v. Otto, 305 Conn. 51, 66–67, 43 A.3d 629 (2012). We recognize that a jury may not properly infer an intent to ‘‘commit murder from the mere fact of the death of the victim, [or] even from her death at the hands of the defendant.’’ State v. Crafts, 226 Conn. 237, 248, 627 A.2d 877 (1993).

         The following evidence, and the reasonable inferences to be drawn therefrom, was sufficient to demonstrate beyond a reasonable doubt that the defendant intended to cause A.P.’s death. First, although A.P.’s body was never found, the defendant has repeatedly admitted[24] that he choked the victim. From this fact, the jury could infer that he intended her death as a natural consequence of that voluntary act. Although such conduct may also be probative of ...


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