Argued
May 2, 2018
Appeal
from Superior Court, Judicial District of New London,
Jongbloed, J., Prescott, J.
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Stephen M. Carney, senior assistant states attorney, with
whom, on the brief, were Michael L. Regan, states attorney,
and John P. Gravalec-Pannone, former senior assistant states
attorney, for the appellant in Docket No. SC 19809 and the
appellee in Docket No. SC 19811 (state).
Lauren
Weisfeld, chief of legal services, for the appellee in Docket
No. SC 19809 and the appellant in Docket No. SC 19811
(defendant).
Palmer,
McDonald, Robinson, DAuria, Mullins, Kahn and Vertefeuille,
Js.[*]
OPINION
MULLINS,
J.
[333
Conn. 92] Following a jury trial, the defendant, George
Michael Leniart, was convicted of murder in violation of
General Statutes § 53a-54a (a) 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.[1] The Appellate Court reversed the
judgment of conviction and remanded the case for a new trial,
holding that the trial court improperly excluded (1) a
videotape that depicted a police officer interviewing a
crucial prosecution witness prior to the administration of a
polygraph examination, and (2) certain expert testimony
proffered by the defendant regarding the reliability of
jailhouse informant testimony. State v. Leniart, 166
Conn.App. 142, 146-47, 140 A.3d 1026 (2016). The Appellate
Court also considered and rejected the defendants claim
regarding the sufficiency of the underlying evidence.
Id. We granted both the states and the defendants
petitions for certification to appeal.
In its
certified appeal, the state challenges the conclusion of the
Appellate Court that the videotape and expert testimony were
improperly excluded. In his appeal, the defendant contends
that he is entitled to a judgment of acquittal because, under
the common-law [333 Conn. 93] corpus delicti rule, the state
failed to set forth sufficient evidence, independent of the
defendants own admissions, to establish that the alleged
victim was, in fact, dead.
We
reverse the judgment of the Appellate Court with respect to
the states appeal and affirm the judgment with respect to
the defendants appeal. Specifically, we
Page 1111
conclude that (1) although the defendants corpus delicti
claim is not merely evidentiary and, therefore, is reviewable
on appeal, the Appellate Court correctly concluded that there
was sufficient evidence to support the conviction, (2)
although the Appellate Court correctly concluded that the
trial courts exclusion of the videotape was improper, the
exclusion of that evidence was harmless, and (3) the
Appellate Court incorrectly concluded that the trial court
had abused its discretion in precluding the expert testimony
proffered by the defendant.
The
following facts, which the jury reasonably could have found,
and procedural history are relevant to the claims before us.
On May 29, 1996, the victim,[2] who was then fifteen
years old, snuck out of her parents home to meet Patrick J.
Allain, a teenage friend also known as P.J., 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,
wooded location near the Mohegan-Pequot Bridge in the
defendants truck.
While
parked, the victim and Allain kissed, drank beer, and smoked
marijuana. At some point, the defendant, who had told Allain
that he was in a cult, called Allain aside and told him that
he wanted "to do" the victim and that he
"wanted a body for the altar."
[333
Conn. 94] Allain, who feared the defendant, returned to the
truck and informed the victim that he and the defendant were
going to rape her. Allain then removed her clothes and had
sex with her in the truck while the defendant watched through
the windshield. After Allain and the victim finished having
sex, the defendant climbed into the truck and sexually
assaulted the victim while Allain held her breast. After the
assault, the victim pretended not to be upset so that the
defendant would not harm her further.
The
defendant then drove the teenagers back to Allains
neighborhood. The defendant dropped off Allain near his home,
and the victim remained in the truck. The victim never
returned home that night and was never seen again, despite a
protracted nationwide search by law enforcement. The search
also did not recover her body.
Allain
subsequently implicated the defendant in the victims death.
As a result, in 2008, the state charged the defendant with
murder in violation of § 53a-54a, capital felony in violation
of § 53a-54b (5) for murder in the course of a kidnapping,
capital felony in violation of § 53a-54b (7) for murder in
the course of a sexual assault, and capital felony in
violation of § 53a-54b (9) for murder of a person under the
age of sixteen. The case was tried to a jury.
The
states case against the defendant included the testimony of
four witnesses, who each testified that, at different times,
the defendant had admitted, directly or indirectly, to
killing the victim. Allain, the states key witness, was
serving a ten year sentence for an unrelated sexual assault
at the time of trial. He testified that, on the afternoon
following the previously described events, the defendant had
asked to meet with him on a path behind the Mohegan School in
Montville. At that meeting, the defendant admitted that
"he had to do [the victim]— to get rid of
her." The defendant described to Allain how, after
dropping Allain off the night before, [333 Conn. 95] he had
Page 1112
pretended to run out of gas near the path.[3] He then
ripped the license plates off his truck, dragged the frantic
victim into the woods, and choked her. Later that evening, at
a second meeting, the defendant further confessed to Allain
that he had killed the victim and had "erased" her
by placing her remains in a lobster trap and dropping them
into the mud at the bottom of the Thames River. The defendant
was a lobster fisherman at the time.
Like
Allain, the states three other confession witnesses either
were inmates at the time of trial or previously had been
incarcerated. Each of these three witnesses had, at some
point, been incarcerated with the defendant while he was
serving time for an unrelated sexual assault charge. Kenneth
S. Buckingham testified that the defendant confided in him
that he accidentally had choked an intoxicated young girl to
death while having sex with her and that he then dismembered
the body and disposed of it in lobster pots "in the
sound." Buckingham also testified that a person named
P.J. had been with the defendant and that victim prior to the
death. Michael S. Douton, Jr., testified that the defendant
had told him that the victim "was in the river" and
that "they would never convict him because they would
never find [her] body," which had been eaten by crabs.
Buckingham and Douton, like Allain, each testified that they
hoped to receive some consideration from the state in return
for their testimony. Zee Y. Ching, Jr., unlike the other
witnesses, was not incarcerated or facing legal jeopardy at
the time of trial. Ching testified that the defendant
admitted that he had raped and killed a fifteen year old girl
on his boat and that he had hidden the body in a well before
ultimately dumping it in Long Island Sound.
[333
Conn. 96] The jury returned a verdict of guilty on all
counts. 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.
On appeal to the Appellate Court, the defendant raised
various challenges to the trial courts evidentiary rulings
and also claimed, relying in part on the common-law corpus
delicti rule, that the evidence was insufficient to sustain
his conviction. State v. Leniart, supra, 166
Conn.App. at 146-49, 140 A.3d 1026. The Appellate Court
rejected the defendants sufficiency claim but concluded that
the trial court incorrectly had excluded the polygraph
pretest interview videotape, as well as expert testimony
relating to the credibility of jailhouse informants. The
Appellate Court then concluded that those evidentiary rulings
substantially affected the verdict and, accordingly, remanded
the case for a new trial.[4]
We
granted the states petition for certification to appeal,
limited to the questions of whether the Appellate Court
correctly concluded that the trial court had erroneously
excluded the polygraph pretest interview videotape and expert
testimony regarding jailhouse informant testimony and that
those rulings substantially affected the verdict.
Page 1113
State v. Leniart, 323 Conn. 918, 150 A.3d 1149
(2016). We also granted the defendants petition for
certification to appeal, limited to the question of whether
the Appellate Court properly applied the corpus delicti rule
in concluding that there was sufficient evidence to sustain
his conviction of murder and capital felony. State v.
Leniart, 323 Conn. 918, 918-19, 149 A.3d 499 (2016).
Additional facts and procedural history will be set forth as
necessary.
[333
Conn. 97] I
CORPUS
DELICTI RULE
We
first consider the claim raised in the defendants appeal.
Before the Appellate Court, the defendant argued, for the
first time; see footnote 7 of this opinion; that the evidence
was insufficient to sustain his conviction because, under the
common-law corpus delicti rule, the state had failed to
establish beyond a reasonable doubt each element of the
crimes charged. As we explain more fully hereinafter, the
corpus delicti rule, although defined and applied differently
in other jurisdictions, and even in our prior cases,
generally "prohibits a prosecutor from proving the [fact
of a transgression] based solely on a defendants
extrajudicial statements."[5] Blacks Law Dictionary
(7th Ed. 1999) p. 346. In the present case, the defendant
argued that there was no evidence, aside from his various
alleged admissions, that the victim actually was dead, which
is the corpus delicti of murder. See State v.
Tillman, 152 Conn. 15, 20, 202 A.2d 494 (1964)
("[T]he corpus delicti consists of the occurrence of the
specific kind of loss or injury embraced in the crime
charged.... [I]n 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." [Footnote omitted.] ).
In
order to identify the specific version of the rule to be
applied in the present case, the Appellate Court reviewed the
purpose and history of the corpus delicti rule. Believing
itself to be bound by cases such as State v. Uretek,
Inc., 207 Conn. 706, 543 A.2d 709 (1988)
(Uretek ), a majority of the Appellate Court held
that the corpus delicti rule is merely an evidentiary rule
that [333 Conn. 98] bars the use of a defendants own
uncorroborated extrajudicial confessions or
admissions[6] to prove the corpus delicti of a
crime. State v. Leniart, supra, 166 Conn.App. at
151, 159, 140 A.3d 1026. Because, in its view, the rule is
one of admissibility, the Appellate Court majority concluded
that the defendant had abandoned his corpus delicti claim by
failing to object at trial to the testimony of Allain,
Buckingham, Ching, and Douton, each of whom testified that
the defendant had confessed to killing the victim.
Id., at 151, 140 A.3d 1026.
Judge
Flynn, writing a separate opinion concurring in part and
dissenting in part, concluded that the corpus delicti rule is
a hybrid rule— it is an evidentiary rule, insofar as it
provides that a defendants confession is inadmissible in the
absence of some corroborating evidence that a crime has been
committed, but it also is a substantive rule of criminal law
providing that a defendant cannot be convicted of a crime
when the only evidence that the crime has been committed is
the defendants own uncorroborated confession. See
id., at 236-37, 140 A.3d 1026. Judge Flynn also
opined that the rule should be applied more strictly with
respect to murder than with respect
Page 1114
to other crimes, in that the state should be required to set
forth independent evidence of the victims death and not
simply extrinsic evidence that tends to establish the
credibility of the defendants confession. Id., at
236, 140 A.3d 1026. All three members of the Appellate Court
panel agreed, however, that the state had, in any event, set
forth sufficient, independent evidence of the victims death
to satisfy the corpus delicti rule, regardless of how that
rule is defined. Id., at 171-75, 140 A.3d 1026;
id., at 237, 140 A.3d 1026 (Flynn, J.,
concurring in part and dissenting in part).
In his
certified appeal, the defendant asks us to clarify that (1)
the corpus delicti rule is, at least in part, a [333 Conn.
99] substantive rule and, therefore, that his claim is
reviewable on appeal despite his failure to object to the
admission of testimony regarding the confessions at trial,
and (2) the rule bars a murder conviction on the basis of a
defendants confession in the absence of independent evidence
that the alleged victim is dead. The defendant further
contends that, in the present case, there was not sufficient
extrinsic evidence to establish that the victim was dead. We
agree with the defendant and Judge Flynn that our states
common-law corpus delicti rule is a hybrid rule that has both
substantive and evidentiary components, and that unpreserved
corpus delicti claims are, therefore, reviewable on appeal.
We agree with the Appellate Court majority, however, that the
rule does not impose a higher standard of proof with respect
to murder than with respect to other crimes. Finally, we
conclude that there was sufficient, independent corroborating
evidence both of the victims death and of the credibility of
the defendants confessions for the jury to have found the
defendant guilty beyond a reasonable doubt.[7] Accordingly,
we affirm the judgment of the Appellate Court with respect to
this claim.
A
Assuming,
arguendo, that the state is correct that the defendants
corpus delicti claim was not preserved at trial, we must
determine as a threshold matter whether [333 Conn. 100] the
corpus delicti rule is merely evidentiary or whether it
encompasses a substantive component that invokes the
defendants due process rights. If it is merely an
evidentiary rule of admissibility, then the defendants
failure to raise his claim at trial precludes appellate
review. See, e.g., State v. Gonzalez, 315 Conn. 564,
591, 109 A.3d 453, cert. denied, __ U.S. __, 136 S.Ct. 84,
193 L.Ed.2d 73 (2015). On the other hand, if the rule
establishes, as a substantive matter, the type or degree of
evidence necessary to establish that elements of a crime have
been proven beyond a reasonable doubt, then the defendants
claim is reviewable on appeal regardless of whether he raised
it at trial.[8] See, e.g.,
Page 1115
State v. Adams, 225 Conn. 270, 275-76 n.3, 623 A.2d
42 (1993) (unpreserved insufficiency of evidence claims
implicate due process rights and are reviewable on appeal).
Whether the corpus delicti rule is evidentiary, substantive,
or a hybrid of the two is a question of law that we review de
novo.
The
parties and the Appellate Court have identified four factors
that are relevant to the question of whether our states
corpus delicti rule has both evidentiary and substantive
components: this courts precedents, the approach followed by
other jurisdictions, the rationales that underlie the rule,
and issues regarding how the rule is applied in practice. Our
review of these factors compels the conclusion that corpus
delicti is a hybrid rule and, therefore, that the defendants
corpus delicti claim is reviewable.[9]
[333
Conn. 101] 1
The
Appellate Court began by comprehensively "reviewing the
purpose, history, and present scope of the corpus delicti
rule in Connecticut." State v. Leniart, supra,
166 Conn.App. at 151-52, 140 A.3d 1026. Although we have not
previously analyzed the issue in any depth, our corpus
delicti decisions, if not entirely consistent, generally
support the conclusion that the rule is a hybrid one that
both bars the admissibility of uncorroborated confession
evidence and imposes a substantive due process requirement.
In one case, for example, the defendant claimed that
"there was insufficient extrinsic evidence of the corpus
delicti to warrant the courts admission of his confessions
...." State v. Doucette, 147 Conn. 95, 97, 157
A.2d 487 (1959), overruled in part by State v.
Tillman, 152 Conn. 15, 20, 202 A.2d 494 (1964). In
Doucette, this court agreed that "[p]roperly
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." (Internal quotation marks
omitted.) State v. Doucette, supra, at 100, 157 A.2d
487. At the same time, we made clear in describing the rule
that it not only governs the admission of confession evidence
but also sets the conditions for obtaining a conviction.
"[T]he corpus delicti," we said, "cannot be
established by the [extrajudicial] confession of the
defendant unsupported by corroborative evidence."
(Internal quotation marks omitted.) Id., at 98-99,
157 A.2d 487. "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 ... and
the defendants agency therein, it is not sufficient of
itself to prove the former, [333 Conn. 102] and, without
evidence aliunde of facts also tending to prove the corpus
delicti, it is not enough to warrant a conviction
...." (Emphasis added; internal quotation marks
omitted.) Id., at 99, 157 A.2d 487.[10]
Page 1116
Since
this court decided Doucette, a number of our
decisions have stated or implied that the corpus delicti rule
encompasses both substantive and evidentiary components and,
therefore, that corpus delicti claims are reviewable even if
not raised at trial. See, e.g., State v. Farnum, 275
Conn. 26, 33, 878 A.2d 1095 (2005); State v. Grant,
177 Conn. 140, 144, 411 A.2d 917 (1979); State v.
Tillman, supra, 152 Conn. at 18, 202 A.2d 494; but see
State v. Oliveras, 210 Conn. 751, 757, 557 A.2d 534
(1989) (leaving open reviewability question with respect to
recently reformulated corpus delicti rule). By contrast, in
no recent decision have we indicated that the rule is
exclusively evidentiary or that unpreserved corpus delicti
claims are unreviewable on appeal.
The
Appellate Court majority, concluding that the corpus delicti
rule is purely evidentiary, understandably believed itself to
be bound by State v. Uretek, Inc., supra, 207 Conn.
706, 543 A.2d 709.[11] See State v. Leniart,
supra, 166 Conn.App. at 161, 140 A.3d 1026. In
Uretek, we declined to consider the named
defendants corpus delicti argument because the defendant had
not preserved the argument at trial. State v.
Uretek, Inc., supra, at 713, 543 A.2d 709. Our review of
the issue was limited to the following sentence: "[The
defendants] [333 Conn. 103] corpus delicti claim does not
implicate a fundamental constitutional right, and, therefore,
this court will not review this contention. State v.
George, 194 Conn. 361, 372, 481 A.2d 1068 (1984), cert.
denied, 469 U.S. 1191, 105 S.Ct. 963, 83 L.Ed.2d 968 (1985);
State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867
(1982); State v. Evans, 165 Conn. 61, 70, 327 A.2d
576 (1973)." State v. Uretek, Inc., supra, at
713, 543 A.2d 709.
We
agree with the defendant that Uretek must be
overruled to the extent that it suggested that corpus delicti
claims do not implicate fundamental due process rights and,
therefore, are not reviewable on appeal unless preserved at
trial. The decision provided no support for that conclusory
proposition, which, as we have discussed, was inconsistent
with both our prior and subsequent corpus delicti cases.
Notably, none of the three cases that Uretek cited
in support of that proposition involved or even referenced
the corpus delicti rule. In addition, Uretek was
decided prior to State v. Adams, supra, 225 Conn. at
275-76 n.3, 623 A.2d 42, in which we ruled that unpreserved
insufficiency of the evidence claims are always reviewable on
appeal.
2
It also
is instructive to consider how the corpus delicti rule has
been construed and applied by our sister states and the
federal courts. Of those states that continue to apply a
corpus delicti rule, the vast majority treat the rule as
either substantive or a substantive and evidentiary hybrid.
See, e.g., Langevin v. State, 258 P.3d 866, 873
(Alaska App. 2011) ("[M]ost American jurisdictions
follow the implicit element approach to corpus delicti....
Under this approach, corpus delicti is an element of the
governments proof— and the general rule is that a
defendant is entitled to a [judgment] of acquittal if the
government fails to offer proof of each element of the
Page 1117
crime." [Citations omitted; internal quotation marks
[333 Conn. 104] omitted.] ); see also 1 K. Broun, McCormick
on Evidence (7th Ed. 2013) § 145, p. 804; 1 W. LaFave,
Substantive Criminal Law (2d Ed. 2003) § 1.4 (b), p. 31. By
contrast, only a handful of our sister states treat the rule
solely as one of admissibility.[12]
In
addition, although the United States Supreme Court has not
expressly resolved the question, several federal circuit
courts of appeals understand the high court to have adopted a
hybrid version of the rule. See, e.g., United States v.
Dickerson, 163 F.3d 639, 642 (D.C. Cir. 1999)
(explaining that United States Supreme Court has
"created something of a hybrid rule having elements both
of admissibility and sufficiency"); see also United
States v. McDowell, 687 F.3d 904, 912 (7th Cir. 2012)
("[t]he corroboration principle sometimes comes into
play in the trial courts decision to admit the defendants
confession and also if he later challenges the sufficiency of
the evidence"); United States v. Singleterry,
29 F.3d 733, 737 (1st Cir.) (discussing dual nature of rule),
cert. denied, 513 U.S. 1048, 115 S.Ct. 647, 130 L.Ed.2d 552
(1994). Moreover, every federal circuit treats the corpus
delicti rule as having some substantive component. See
generally United States v. Marshall, 863 F.2d 1285,
1287 (6th Cir. 1988) (reviewing topic and citing cases). That
so many of our sister courts treat the rule as substantive
not only provides persuasive authority for following that
approach but also mitigates any concerns that the state has
raised; see part I A 4 of this opinion; that applying the
rule substantively would be impracticable or inappropriate.
3
We also
agree with McCormick on Evidence, which posits that the
rationales that gave rise to and continue [333 Conn. 105] to
justify the corpus delicti rule support treating that rule as
substantive. See 1 K. Broun, supra, § 145, p.
805.[13] "The rationale for the
requirement is that inculpatory confessions and admissions
are frequently unreliable for many reasons, including
coercion, delusion, neurosis, self-promotion, or protection
of another person. Jurors find such statements inherently
powerful, however, and may vote to convict based upon such
statements alone.... The [corpus delicti] rule, which is
intended to prevent convictions of innocent defendants, also
encourages better law enforcement because police and
prosecutors cannot rely solely on a defendants statements to
prove a case." (Citation omitted.) United States v.
Bryce, 208 F.3d 346, 354-55 (2d Cir. 1999).
Treating
the corpus delicti rule as evidentiary is fully consistent
with the purpose of the rules of evidence, which is to bar
unreliable evidence offered to influence the trier of fact.
See, e.g., Pagano v. Ippoliti, 245 Conn. 640, 656,
716 A.2d 848 (1998) (McDonald, J., dissenting); see
also State v. Beverly, 224 Conn. 372, 375, 618 A.2d
1335 (1993) ("[t]he corpus delicti rule is a rule of
evidence"). However, as we discuss at greater length
hereinafter; see part I B 1 of this opinion; the rule did not
originate exclusively, or even primarily, to assist the jury
in assessing the credibility
Page 1118
of confession evidence, or even to ensure that false
confessions are not entered into evidence. Rather, the rule
has a more fundamental purpose, namely, to avoid the patent
injustice of convicting an innocent person— frequently
one who either is mentally ill or has been subject to
coercive interrogation— of an imaginary crime. See
State v. Arnold, 201 Conn. 276, 287, 514 A.2d 330
(1986); D. Moran, " [333 Conn. 106] In
Defense of the Corpus Delicti Rule," 64 Ohio St.
L.J. 817, 817 (2003). Those concerns lie at the core of our
due process protections, and we can perceive no reason why
the injustice of trying and convicting a possibly troubled
individual for a nonexistent crime should be compounded by
denying that individual the opportunity for appellate review
when his or her attorney fails to raise a timely and
appropriate objection.
Furthermore,
to the extent that a purpose of the rule is to eliminate
incentives for law enforcement to obtain false confessions
through coercive means, while at the same time promoting more
thorough investigative practices, corpus delicti fairly may
be characterized as a type of constitutional prophylactic
rule. See T. Mullen, "Rule Without Reason: Requiring
Independent Proof of the Corpus Delicti as a Condition of
Admitting an Extrajudicial Confession," 27 U.S.F.
L.Rev. 385, 401 (1993) (describing purposes of rule); see
also C. Rogers, "Putting Meat on Constitutional
Bones: The Authority of State Courts To Craft Constitutional
Prophylactic Rules Under the Federal Constitution,"
98 B.U. L.Rev. 541, 548, 555-56 (2018) (defining
constitutional prophylactic rules). We are not aware of any
such rule the alleged violation of which must be raised at
trial in order to be reviewable on appeal. See State v.
Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989)
(establishing requirements for defendant to prevail on claim
of constitutional error not preserved at trial). Accordingly,
the rationales that underlie the rule are fully consistent
with the majority position that corpus delicti is a
substantive rule of criminal law to be applied in reviewing
the sufficiency of the states evidence and not merely an
evidentiary rule regarding the admissibility of confessions.
4
We next
consider several reasons offered by the state and the
Appellate Court majority as to why corpus [333 Conn. 107]
delicti should be treated solely as a rule of admissibility.
First, the Appellate Court decision starts with the premise
that, if the rule implicates the sufficiency of the evidence,
then the jury must be involved in some way in resolving
corpus delicti questions. See State v. Leniart,
supra, 166 Conn.App. at 166, 140 A.3d 1026. But, that line of
reasoning proceeds, courts typically do not instruct jurors
that they must find the corpus delicti of a crime established
independent of the defendants own incriminating statements.
Id. In addition, the Appellate Court majority
reasoned that, if jurors are to be tasked with finding that
the corpus delicti has been established independent of any
confession evidence, then they, having already heard the
defendants confessions, would be required to set those
confessions aside while objectively evaluating the strength
of any independent, corroborating evidence. The Appellate
Court majority opined that that expectation is not realistic.
Id., at 167-68, 140 A.3d 1026. Thus, the court
concluded, the rule must not be substantive.
We are
not persuaded that the Appellate Courts starting premise is
correct. Many of the courts that treat the corpus delicti
rule as a substantive rule that implicates the sufficiency of
the evidence do not involve the jury in its application. See,
e.g.,
Page 1119
United States v. McDowell, supra, 687 F.3d at 912
("[W]e have held that the district court is not
obligated to instruct the jury on the requirement of
corroboration.... Following the lead of two other circuits,
we concluded ... that the matter was better left to the trial
judge, and that the standard instructions regarding the
governments burden of proof and the presumption of innocence
are generally sufficient." [Citation omitted.] ). In
those jurisdictions, the trial court makes an initial
determination as to whether there is sufficient corroboration
to allow the jury to hear the defendants confessions. If the
court allows the confessions— and thus the case—
to reach the jury, the jury is then tasked with assessing
whether [333 Conn. 108] all of the evidence, including the
confessions and any extrinsic evidence, is sufficient to
establish the defendants guilt beyond a reasonable doubt.
In
United States v. Dickerson, supra, 163 F.3d at
642-43, the United States Court of Appeals for the Tenth
Circuit explained why the fact that the rule involves a
substantive component that implicates the defendants due
process rights does not require the involvement of the jury
in its application. Corpus delicti, that court explained, is
"essentially ... a duty imposed upon courts to ensure
that the defendant is not convicted on the basis of an
uncorroborated out-of-court-statement." Id., at
642. In this respect, the rule places the trial court in the
same gatekeeping role that it occupies in deciding a motion
for a judgment of acquittal. Id., at 643. In that
capacity, the court must determine whether there is
sufficient evidence to support a finding of guilt before
sending the case to the jury. As the court noted in
Dickerson, however, "no one thinks it follows
from this that the jury must be given an opportunity to
reconsider for itself the judges decision on a motion for
judgment of acquittal." Id. The same logic
applies, a fortiori, to the corpus delicti rule, which
requires only that the trial court make the threshold
determination that there are some "corroborating facts
[that] tend to produce a confidence in the truth of the
confession ...." (Internal quotation marks omitted.)
State v. Hafford, 252 Conn. 274, 317, 746 A.2d 150,
cert. denied, 531 U.S. 855, 121 S.Ct. 136, 148 L.Ed.2d 89
(2000); see also id. ("it is sufficient if the
corroboration merely fortifies the truth of the
confession" [internal quotation marks omitted] ).
The
Appellate Court majority also was of the view that, because
"the rule itself is not constitutional in nature and
jurisdictions are free to abandon it altogether ... it makes
little sense to characterize it as an implicit element of the
states case that is subject to appellate review like all
other unpreserved sufficiency of the evidence claims."
[333 Conn. 109] State v. Leniart, supra, 166
Conn.App. at 167, 140 A.3d 1026. In a footnote, the majority
acknowledged, however, that the rule could take on
constitutional implications if the legislature were to
formally adopt it. Id., at 167 n.19, 140 A.3d 1026.
We do
not agree that the question of whether the corpus delicti
rule is substantive in nature and, thus, implicates the
defendants constitutional rights, hinges on whether it has
been formally codified. It is true that "[t]he adoption
of the comprehensive Penal Code in 1969 abrogated the
common-law authority of Connecticut courts to impose criminal
liability for conduct not proscribed by the
legislature." Luurtsema v. Commissioner of
Correction, 299 Conn. 740, 772, 12 A.3d 817 (2011). At
the same time, however, the savings clause to the Penal Code
provides, and our cases recognize, that the common law is
preserved under the code unless clearly preempted; the code
does not bar our courts from "recognizing other
principles
Page 1120
of criminal liability or other defenses not inconsistent
with" statute. General Statutes § 53a-4; see, e.g.,
State v. Terwilliger, 314 Conn. 618, 654, 104 A.3d
638 (2014) (self-defense); State v. Courchesne, 296
Conn. 622, 679-88 and n.44, 998 A.2d 1 (2010) (born alive
principle); State v. Walton, 227 Conn. 32, 45, 630
A.2d 990 (1993) (vicarious liability of conspirator). As the
cited examples indicate, common-law rules and principles that
are neither constitutionally required nor expressly adopted
by statute nevertheless may clarify the elements of, or
defenses to, a crime in ways that have constitutional
implications. The corpus delicti rule is no different.
Finally,
the state argues that it would be fundamentally unfair to
review unpreserved corpus delicti claims because prosecutors
will not have been put on notice at the time of trial that
there may be a corpus delicti problem and, therefore, will
not have the opportunity to identify and introduce the
additional evidence necessary to corroborate a defendants
naked confession. [333 Conn. 110] We trust that the present
opinion will serve as adequate notice. See Burks v.
United States, 437 U.S. 1, 16, 98 S.Ct. 2141, 57 L.Ed.2d
1 (1978) ("the prosecution cannot complain of prejudice,
for it has been given one fair opportunity to offer whatever
proof it could assemble").
For
all of these reasons, we conclude that the corpus delicti
rule is a hybrid rule that not only governs the admissibility
of confession evidence but also imposes a substantive
requirement that a criminal defendant may not be convicted
solely on the basis of a naked, uncorroborated confession.
Accordingly, the defendants corpus delicti claim is
reviewable even though it was not properly preserved at
trial.
B
Having
established that our corpus delicti rule has a substantive
component that implicates the defendants due process rights
and, therefore, that his claim is reviewable, we now turn our
attention to the merits of his claim. To resolve the claim,
we first must address another dispute between the parties,
and among the Appellate Court panel, regarding how the rule
applies in murder cases.
1
The
defendant contends, in essence, that the corpus delicti rule
imposes different, more stringent standards with respect to
murder than with respect to less serious crimes. Before we
set forth the defendants argument, it will be helpful
briefly to review the evolution of the corpus delicti rule in
Connecticut.
Although
our cases contain earlier references to the rule; see, e.g.,
State v. Carta, 90 Conn. 79, 83, 96 A. 411 (1916);
the corpus delicti rule was first fully articulated in 1933.
See State v. La Louche, 116 Conn. 691, 166 A. 252
(1933), overruled in part by [333 Conn. 111] State v.
Tillman, 152 Conn. 15, 20, 202 A.2d 494 (1964). In
La Louche, this court characterized the rule as
follows: "Undoubtedly the general rule is that the
corpus delicti cannot be established by the [extrajudicial]
confession of the defendant unsupported by corroborative
evidence.... There are cases which hold in effect that it
must be established by evidence independent of the
defendants confession and that without such proof evidence
of the confession is inadmissible....
"The overwhelming weight of authority and of reason,
however, recognizes that such a confession or admission may
be considered in connection with other evidence to establish
the corpus delicti, and that it is not necessary to prove it
by
Page 1121
evidence entirely independent and exclusive of the
confession.... In order to warrant a conviction in a given
case, it must be shown (1) that a crime has been committed,
and (2) that the person charged therewith was the active
agent in the commission thereof. But, while it is necessary
that both of said essential facts should be proved beyond a
reasonable doubt, it does not follow that each must be proved
independently of, and apart from, the other, or that either
must be proved independently of, and without regarding the
confession of the person charged with the crime. The
confession is evidence tending to prove both the fact that
the crime was committed and the defendants agency
therein.... But it is not sufficient of itself to prove the
former, and, without [independent] evidence ... of facts also
tending to prove the corpus delicti, it is not enough to
warrant a conviction. There must be such extrinsic
corroborative evidence as will, when taken in connection with
the confession, establish this fact in the minds of the jury
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 [333 Conn. 112] would
establish the corpus delicti beyond a reasonable doubt apart
from the confession.... [T]his 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." (Citations omitted;
internal quotation marks omitted.) State v. La
...