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State v. Leniart

Supreme Court of Connecticut

September 10, 2019

STATE of Connecticut
v.
George Michael LENIART

         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 state’s attorney, with whom, on the brief, were Michael L. Regan, state’s attorney, and John P. Gravalec-Pannone, former senior assistant state’s 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, D’Auria, 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 defendant’s claim regarding the sufficiency of the underlying evidence. Id. We granted both the state’s and the defendant’s 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 defendant’s own admissions, to establish that the alleged victim was, in fact, dead.

          We reverse the judgment of the Appellate Court with respect to the state’s appeal and affirm the judgment with respect to the defendant’s appeal. Specifically, we

Page 1111

conclude that (1) although the defendant’s 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 court’s 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 defendant’s 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 Allain’s 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 victim’s 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 state’s 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 state’s 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

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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 state’s 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 court’s 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 defendant’s 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 state’s 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.

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State v. Leniart, 323 Conn. 918, 150 A.3d 1149 (2016). We also granted the defendant’s 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 defendant’s 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 defendant’s extrajudicial statements."[5] Black’s 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 defendant’s 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 defendant’s 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 defendant’s 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

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to other crimes, in that the state should be required to set forth independent evidence of the victim’s death and not simply extrinsic evidence that tends to establish the credibility of the defendant’s 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 victim’s 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 defendant’s 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 state’s 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 victim’s death and of the credibility of the defendant’s 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 defendant’s 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 defendant’s due process rights. If it is merely an evidentiary rule of admissibility, then the defendant’s 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 defendant’s claim is reviewable on appeal regardless of whether he raised it at trial.[8] See, e.g.,

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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 state’s corpus delicti rule has both evidentiary and substantive components: this court’s 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 defendant’s 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 court’s 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 defendant’s 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]

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          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 defendant’s 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 defendant’s] [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 government’s 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

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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 court’s decision to admit the defendant’s 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 defendant’s 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

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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 state’s 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 defendant’s 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 defendant’s 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 Court’s 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.,

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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 government’s 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 defendant’s 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 defendant’s 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 defendant’s 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 judge’s 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 state’s 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 defendant’s 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

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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 defendant’s 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 defendant’s 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 defendant’s 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 defendant’s 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 defendant’s 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

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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 defendant’s 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 ...


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