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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

         Procedural History

         Substitute information charging the defendant with three counts of the crime of capital felony and one count of the crime of murder, brought to the Superior Court in the judicial district of New London and tried to the jury before Jongbloed, J.; thereafter, the court granted the state's motion to preclude certain evidence; verdict and judgment of guilty, from which the defendant appealed; subsequently, the Appellate Court, Sheldon and Prescott, Js., with Flynn, J., concurring in part and dissenting in part, reversed the judgment of the trial court and remanded the case for a new trial, and the state and the defendant, on the granting of certification, filed separate appeals with this court. Reversed in part; further proceedings.

          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.

         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 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 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.''

         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, he had 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 pre- viously 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.

         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. 146-49. 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. 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.

         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 bars the use of a defendant's own uncorroborated extra-judicial confessions or admissions[6] to prove the corpus delicti of a crime. State v. Leniart, supra, 166 Conn.App. 151, 159. 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., 151.

         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, 236-37 Judge Flynn also opined that the rule should be applied more strictly with respect to murder than with respect 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., 236 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., 171-75; id, 237 (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 substantive rule and, therefore, that his claim is review-able 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. Weagree 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 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., 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]

         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. 151-52. 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, 100. 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., 98-99. ‘‘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, 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., 99.[10]

         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. 18; 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.[11] See State v. Leniart, supra, 166 Conn.App. 161. 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, 713. Our review of the issue was limited to the following sentence: ‘‘[The defendant's] 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, 713.

         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. 275-76 n.3, 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 crime.'' [Citations omitted; internal quotation marks 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 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 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, ‘‘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 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. 166. 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., 167-68. 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., United States v. McDowell, supra, 687 F.3d 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 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 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., 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., 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.'' State v. Leniart, supra, 166 Conn.App. 167. In a footnote, the majority acknowledged, however, that the rule could take on constitutional implications if the legislature were to formally adopt it. Id., 167 n.19.

         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 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. 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. LaLouche, 116 Conn. 691, 166 A. 252 (1933), overruled in part by State v. Tillman, 152 Conn. 15, 20, 202 A.2d 494 (1964). In LaLouche, 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 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 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. LaLouche, supra, 116 Conn. 693-95; see also State v. Doucette, supra, 147 Conn. 98-100 (reaffirming rule).

         In the decades since we decided LaLouche and Doucette, and consistent with the modern trend, we have reduced in several respects the burden that the corpus delicti rule imposes on the state in prosecuting a crime.[14] First, in State v. Tillman, supra, 152 Conn. 20, we joined a small handful of jurisdictions to have departed from the traditional rule that the state must establish, by independent evidence, [15] both that an injury or loss occurred and that the loss was feloniously caused.[16] In Tillman, we held that the corpus delicti that must be established by independent evidence encompasses only the former element, namely, the specific kind of loss or injury embraced in the crime charged. Id. ‘‘Under [this definition], 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.'' Id.; but see State v. Courchesne, supra, 296 Conn. 791 n.5 (Zarella, J., concurring in part and dissenting in part) (adhering to traditional rule that corpus delicti includes fact that ‘‘death was produced through criminal agency'' [internal quotation marks omitted]).

         Next, in State v. Harris, 215 Conn. 189, 193-94, 575 A.2d 223 (1990), we modified the rule as it applies to crimes, such as driving under the influence, that proscribe certain undesirable conduct but do not necessarily entail any particular injury or loss. Specifically, relying on the decision of the United States Supreme Court in Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954), we concluded that, for crimes of that sort, the state need not establish the corpus delicti of the crime through extrinsic evidence. Rather, the state need only ‘‘introduce substantial independent evidence [that] would tend to establish the trustworthiness of the [defendant's] statement.'' (Internal quotation marks omitted.) State v. Harris, supra, 194.

         Most recently, in State v. Hafford, supra, 252 Conn. 317, we held that this trustworthiness rule set forth in Harris, also known as the corroboration rule, now ‘‘applies to all types of crimes, not only those offenses that prohibit conduct and do not result in a specific loss or injury.'' In other words, post-Hafford, a confession is now sufficient to establish the corpus delicti of any crime, without independent extrinsic evidence that a crime was committed, as long as there is sufficient reason to conclude that the confession is reliable.

         In Hafford, we justified this departure from our established corpus delicti jurisprudence by observing that the corroboration rule (1) has been embraced both by the federal courts and by an increasing number of state courts, (2) is favored by a number of respected commentators, and (3) is more reasonable and more workable than the traditional corpus delicti rule. Id., 316-17. At the same time, we expressed confidence that the corroboration rule, as applied in Harris, would continue to ‘‘fulfill the avowed purpose and reason for the existence of the corpus delicti rule [by] protect[ing] accused persons against conviction of offenses that have not in fact occurred . . . and prevent[ing] errors in convictions based upon untrue confessions alone.'' (Internal quotation marks omitted.) Id., 316.

         The defendant does not deny that, under Hafford, the state may rely, in most instances, on the accused's statements to establish all of the elements of a charged crime, as long as there is sufficient, independent evidence to establish the trustworthiness of those statements. The defendant emphasizes, however, that, in Hafford, we left open the possibility that extrinsic evidence of the corpus delicti still might be required before a defendant can be convicted of murder on the basis of a confession. Specifically, he draws our attention to a footnote in which this court noted 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.'' Id., 317 n.23. The Appellate Court majority in the present case dismissed the importance of that statement, concluding that the ‘‘cryptic footnote, '' which was merely dictum, was too conclusory and equivocal to indicate that we intended to carve out an exception to the corroboration rule for murder prosecutions. State v. Leniart, supra, 166 Conn.App. 156-58. Judge Flynn disagreed, writing that, in his view, independent proof of death should be required in any murder case. Id., 229-32 (Flynn, J., concurring in part and dissenting in part).

         At first blush, requiring the prosecution to prove the fact of death by extrinsic evidence in a murder case would seem to be consistent with the history of the corpus delicti rule, which was inspired by two cases- centuries and continents apart-in which defendants were wrongly convicted of the murders of victims who were still very much alive.[17] See D. Moran, supra, 64 Ohio St. L.J. 829-30; T. Mullen, supra, 27 U.S.F. L. Rev. 399-401; R. Perkins, ‘‘The Corpus Delicti of Murder, '' 48 Va.L.Rev. 173, 173-75 (1962). The first, known as Perry's Case, arose from the disappearance of William Harrison from his home in Chipping Campden, England, in 1660. See generally J. Paget, Legal Recreations: Judicial Puzzles (1876) pp. 37-67. When the septuagenarian Harrison failed to return from his regular two mile walk to collect rents for the Viscountess Campden, a servant, John Perry, was sent to search for him. Id., p. 39. A bloodied band, a torn hat, and a comb belonging to Harrison were found, and Perry was arrested. Id., p. 40. After several interrogations, however, John Perry confessed that he had conspired with his mother and brother to rob Harrison, that his brother had choked Harrison to death, and that he had disposed of the body in a swamp. Id., p. 41. The three Perrys were tried, convicted of Harrison's murder, and hanged within the week. Id., p. 43. Several years later, a haggard Harrison mysteriously reappeared in Campden, claiming to have been captured by men on horseback, transferred to a Turkish ship, and sold into slavery, from which he had ultimately escaped.[18] Id., pp. 44-49.

         The second case centers on equally incredible but somewhat less tragic events that took place in Manchester, Vermont. See E. Borchard, Convicting the Innocent: Sixty-Five Actual Errors of Criminal Justice (1932) pp. 14-21. Two brothers, Stephen Boorn and Jesse Boorn, were known to be ill-inclined toward Russel Colvin, their eccentric brother-in-law. Id., p. 14. Colvin vanished one day in May, 1812, while his wife was away, and, after a time, suspicion of foul play fell on Stephen and Jesse. Id., pp. 14-15. Seven years and many rumors and superstitions later, after a dog had dug up some animal bones near the Boorn property, Jesse was interrogated by a justice of the peace and implicated Stephen in Colvin's ‘‘murder.'' Id., pp. 15-16. A jailhouse informant, Silas Merrill, subsequently informed a grand jury that Jesse had confessed to him that both Stephen and Jesse had been involved in Colvin's death. Id., p. 17. Stephen subsequently confessed to killing Colvin and disposing of his remains in a river and under an old tree stump. Id., pp. 17-18. Stephen then was tried, convicted, and sentenced to hang. Id., p. 18.

         In that case, however, fortune, together with the slower and more cautiously moving wheels of justice in nineteenth century Vermont, spared Stephen the same fate as the Perrys. Two months before the scheduled execution, one of Stephen's attorneys published an article in the New York Evening Post in an attempt to locate Colvin. Id., p. 18. Through an unlikely confluence of events, Colvin, who may have been mentally ill, was found tobe living in New Jersey under a different identity, and Stephen was exonerated. Id., pp. 14, 20-21.

         Returning to the question before us, courts and commentators have articulated several rationales for the corpus delicti rule: ‘‘(1) protecting the mentally unstable from the consequences of their false confessions, (2) avoiding reliance on repudiated confessions out of concern for voluntariness, and (3) promoting better police work by requiring the prosecution to prove its case without the aid of confessions.'' T. Mullen, supra, 27 U.S.F. L. Rev. 401. As the Perry and Boorn cases demonstrate, however, the rule originated in response to, and was most powerfully justified by, ‘‘a narrow, practical problem: how to ensure that after a murderer was executed the supposed murder victim did not show up to cast doubt on the propriety of the execution.'' Id., 399.

         Those cases also reveal, we think, why it is not necessary to apply the rule more stringently in murder cases than with regard to other crimes. Already, from the time of Perry's Case to that of the Boorns, social progress was such that Stephen Boorn was able to evade the gallows. The longer delay between conviction and execution in nineteenth century Vermont gave Stephen's attorneys a reasonable opportunity to investigate Colvin's disappearance after the condemned repudiated his earlier confession. At the same time, newspapers of mass circulation, such as the New York Evening Post, allowed for a broad and efficient search for the missing ‘‘victim.''

         Now consider modern Connecticut. The horrible that first inspired the rule-a disturbed individual executed after confessing to an imaginary murder-is no longer a concern following the repeal of the death penalty in this state. Although false conviction remains a tragic and ever present possibility, it is no longer a completely irreparable one.

         Further, the technological tools that are now available to locate missing persons are truly impressive. When the Internet was still in its infancy, the United States Court of Appeals for the Third Circuit recognized that ‘‘[w]orldwide communication and travel today are so facile that a jury may properly take into account the unlikelihood that an absent person, in view of his health, habits, disposition and personal relationships would voluntarily flee, go underground, and remain out of touch with family and friends. The unlikelihood of such a voluntary disappearance is circumstantial evidence entitled to weight equal to that of bloodstains and concealment of evidence.'' (Internal quotation marks omitted.) Virgin Islands v. Harris, 938 F.2d 401, 418 (3d Cir. 1991). That statement is all the more true today, with new technologies running the gamut from ‘‘Amber Alerts, '' to biometric identification databases, to social media platforms such as Facebook and Twitter. See McDuff v. State, 939 S.W.2d 607, 623 (Tex. Crim. App.) (‘‘it is less likely in today's mobile and technological society that a person might vanish and never be heard from again''), cert. denied, 522 U.S. 844, 118 S.Ct. 125, 139 L.Ed.2d 75 (1997). That is not to say that people do not still go missing, sometimes for many years. With modern tools and expertise, however, many, if not most, are located quickly.[19] Accordingly, the abolition of the death penalty and the increasing unlikeliness that a living person will disappear without a trace for an extended period of time have mitigated the two most compelling rationales for retaining the traditional, more stringent corpus delicti rule solely with respect to murder prosecutions.

         In addition, the same general considerations that have led courts and commentators[20] to question the ongoing vitality of the corpus delicti rule-mostly the fact that the Miranda warnings[21] and related constitutional protections have curtailed the use of coercive interrogation techniques by law enforcement-apply to murder no less than to other crimes. Those considerations counsel against carving out a special exception for murder.

         Finally, we note that, unlike with many other crimes, in any murder prosecution there necessarily will be at least some modicum of extrinsic evidence to support a defendant's confession, namely, a missing person. We are not aware of, and we doubt that due process would permit, any prosecution charging the murder of a wholly unspecified victim. A person charged with murder must be charged with the murder of some specific victim who must, at the very least, have gone missing for some not insignificant period of time. Accordingly, we decline the defendant's invitation to carve out a special exception to the rule set forth in State v. Harris, supra, 215 Conn. 193-94, for the crime of murder.

         2

         We now turn our attention to the defendant's claim that the state failed to set forth sufficient evidence at trial to corroborate his alleged confessions and establish that the victim was, in fact, dead. As previously discussed, the corpus delicti rule, as most recently clarified by this court in Harris and Hafford, required that the state introduce ‘‘substantial independent evidence [that] tend[s] to establish the trustworthiness of the [defendant's] statement[s].'' (Emphasis omitted; internal quotation marks omitted.) State v. Hafford, supra, 252 Conn. 316; see also R. Perkins, supra, 48 Va.L.Rev. 181 (‘‘[prima facie] evidence is sufficient for this purpose, and there are indications in the direction of accepting even less than this'' [footnote omitted]). The Appellate Court concluded, and we agree, that there was sufficient, independent corroborating evidence both to permit the trial court to allow the defendant's alleged confessions into evidence and, when considered in tandem with the various confessions, for the jury to find, beyond a reasonable doubt, that the defendant was guilty of the victim's murder. That evidence, which is more fully set forth in the opinion of the Appellate Court, may be briefly summarized as follows.

         First, although it was not required under the rule that we have articulated today; see part I B 1 of this opinion; substantial circumstantial evidence was introduced at trial, wholly independent of the defendant's alleged confessions, tending to show that the victim died around the time of the alleged murder. The fifteen year old victim disappeared suddenly and without warning on May 29, 1996. She left home that night without taking any money, clothing, or personal belongings, despite the fact that nearly $1000 was available in the house. The jury also reasonably could have found, on the basis of the evidence presented at trial, that she enjoyed her family, friends, life, and routines in Montville and had no desire to run away from home or to commit suicide.

         At the time of trial, she had been missing for more than thirteen years, without having made any known contact with family or friends, and a nationwide search had failed to locate her or to flag any use of her social security number.[22] See Virgin Islands v. Harris, supra, 938 F.2d 417 (in murder cases in which body is never found, victim's failure to maintain habits and regular contact with family and friends is important extrinsic evidence of corpus delicti). In addition, Allain testified that, the day after the victim disappeared, he discovered her shoe on the wooded path where the defendant had taken him. All of this tended to support the conclusion that the victim had been murdered rather than running away from home.

         In addition, aside from relating several of the defendant's alleged confessions, Allain provided other independent support for the conclusion that the victim had been killed. Allain testified that both he and the defendant had raped the victim on the evening in question, and that he had left the victim alone in the defendant's company. That testimony, if credited, established that the defendant already had assaulted the victim that night and that he had both the motive and ...


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