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 ...