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Dodds v. State (3/10/00) ap-1668
Dodds v. State (3/10/00) ap-1668
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
IAN DODDS, )
) Court of Appeals No. A-7086
Appellant, ) Trial Court No. 4FA-97-2822 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1668 March 10, 2000]
)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Ralph R. Beistline, Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and Barbara K. Brink, Public Defender,
Anchorage, for Appellant. Marcelle K. McDannel, Assistant Attorney
General, Office of Special Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
Ian Dodds appeals his conviction for first-degree robbery.
[Fn. 1] He contends that the trial judge committed error by failing
to have the jury decide whether the State had proved the corpus
delicti of robbery. But Dodds did not ask for a corpus delicti
instruction, so he must establish plain error to prevail on appeal.
As we explain here, the facts of Dodds's case raise no real issue
of corpus delicti. Moreover, Alaska law provides no clear answer
to the question of whether corpus delicti is to be decided by the
trial judge or the jury. For these reasons, we conclude that the
trial judge's failure to instruct the jury on the issue of corpus
delicti does not constitute plain error, and we therefore affirm
Dodds's conviction.
Facts of the case and the challenged jury instruction
On the night of September 6, 1997, two men broke into a
Fairbanks residence and robbed the homeowners. One week later, the
police questioned Ian Dodds about this crime, and Dodds confessed
that he was one of the robbers.
At Dodds's ensuing trial for first-degree robbery, the
State introduced evidence of Dodds's confession. Accordingly,
Dodds's attorney asked the trial judge to give Criminal Pattern Jury
Instruction 1.24, which discusses whether a defendant's out-of-court
statement should be categorized as an admission or a confession:
A statement made by a defendant other than
at the defendant's trial may be either an admission or a confession.
An admission is a statement by a defendant
which by itself is not sufficient to warrant an inference of guilt
but which tends to prove guilt when considered with other evidence.
A confession is a statement by a defendant
which discloses intentional participation in the criminal act for
which the defendant is on trial and which, if believed, proves the
defendant's guilt of that crime.
You are the exclusive judges as to whether
an admission or a confession was made by the defendant and if the
statement is true in whole or in part. If you should find that such
statement is entirely untrue, you must reject it. If you find that
it is true in part, you may consider that part which you find to be
true.
Evidence of an oral admission of the
defendant ought to be viewed with caution.
Even though Dodds asked for this instruction, he now
claims that the trial judge committed plain error in giving it. The
error in the instruction, Dodds contends, is the way it describes
a defendant's confession.
According to the instruction, a confession is "a statement
by a defendant which discloses [the defendant's] intentional
participation in the [crime charged] and which, if believed, proves
the defendant's guilt of that crime." (emphasis added) Dodds argues
that this italicized language misstates the doctrine of corpus
delicti because it suggests that a defendant's confession, standing
alone, may be sufficient to prove a defendant's guilt.
The proof required by the corpus delicti rule
Dodds insists that, even without request, the trial judge
was obliged to instruct the jury that Dodds's confession was not
sufficient to prove his guilt unless the State presented substantial
independent evidence corroborating the confession. In particular,
Dodds argues that the trial judge committed plain error when he
neglected to tell the jury that they could not convict Dodds unless
the State presented substantial independent evidence tending to
establish that Dodds was, in fact, one of the robbers.
Under the doctrine of corpus delicti, a criminal
conviction can not rest on an uncorroborated confession. [Fn. 2]
But Dodds's argument misapprehends the corpus delicti rule. While
corpus delicti requires independent evidence that the charged crime
occurred, it does not require independent evidence that the
defendant participated in that crime.
Generally speaking, to prove that a defendant has violated
a criminal statute, the government must establish (1) the occurrence
of the injury, loss, or other harm specified in the statute, and (2)
the defendant's culpable participation in causing this injury, loss,
or harm. [Fn. 3] The corpus delicti rule requires the State to
introduce independent evidence of the first factor, but not the
second. [Fn. 4] The Alaska Supreme Court has explicitly adopted
this interpretation of the rule. [Fn. 5]
In Dodds's case, the first factor the occurrence of the
robbery was amply demonstrated by the testimony of the two victims
and was not seriously contested. The primary dispute at trial
involved the second factor whether Dodds participated in the
robbery. This dispute raised no issue of corpus delicti.
To qualify as "plain error", an error must be obviously
prejudicial to the fairness of the proceedings. [Fn. 6] Because
Dodds did not dispute the occurrence of the robbery, there was no
dispute concerning the existence of the corpus delicti. Therefore,
even if it was error to fail to instruct the jury on this issue, the
error was not manifestly prejudicial to the fairness of Dodds's
trial. [Fn. 7]
Whether corpus delicti is an issue for the trial judge or the
jury
The corpus delicti rule is universally interpreted as
requiring the government to lay an evidentiary foundation (by
producing corroborating evidence) as a predicate for introducing the
defendant's confession. In its traditional form, the rule may have
barred the government from introducing the confession until it first
had proved the corpus delicti. [Fn. 8] Nowadays, courts and
commentators generally take the position that a trial judge has the
discretion to vary the order of proof allowing the government to
introduce the defendant's confession before it has introduced the
additional evidence that will establish the corpus delicti, so long
as the corpus delicti is proved before the government rests. [Fn.
9] This is the position adopted by the Alaska Supreme Court. [Fn.
10]
But, leaving aside the order of proof, another question
remains: Is corpus delicti purely a rule specifying the evidentiary
foundation that must be laid for admission of the defendant's
confession at a criminal trial? Or is corpus delicti an implicit
element of the government's proof of a criminal charge?
If the corpus delicti rule simply defines the evidentiary
foundation needed to support introduction of the defendant's
confession, then this decision would be made by the trial judge
before the case is submitted to the jury. The judge would assess
the sufficiency of the State's evidence to prove the corpus delicti,
and this decision would be one of law similar to the judge's
assessment of the sufficiency of any other evidentiary foundation
under Alaska Evidence Rule 104(a)-(b). Assuming the judge ruled
that the corpus delicti had been established, then, at the end of
trial, the jury would consider all of the evidence (including the
defendant's confession) and decide whether the State had established
each element of the charged crime beyond a reasonable doubt.
If, however, the corpus delicti rule establishes an
implicit element of the government's proof, then the trial judge's
evidentiary ruling would be merely preliminary to the jury's later
determination of corpus delicti. The defendant's confession would
not be admissible unless the trial judge found that the corpus
delicti had been established. But even after the trial judge ruled
that the confession was admissible, the jury would be asked to again
determine whether the State's evidence satisfied the corpus delicti
rule. That is, the jury would be asked to decide whether the
State's other evidence was sufficiently corroborative of the
confession to establish the occurrence of the crime.
Wigmore notes that there is a divergence of legal opinion
on this question, with some courts taking the "evidentiary
foundation" approach to corpus delicti and others taking the
"implicit element" approach. [Fn. 11] According to Wigmore, most
courts follow the "implicit element" approach, with the jury making
the final determination of corpus delicti.
The "implicit element" approach to corpus delicti is
difficult to reconcile with our law's normal view concerning a
jury's ability to dispassionately assess a confession. Confessions
can be powerful evidence, and courts have traditionally feared that,
once a jury hears the defendant's confession, the jury will be
unable to put aside this knowledge.
One example of the cautious approach taken by courts when
faced with admitting defendants' confessions is the Bruton rule
the rule that, when two or more defendants are being tried jointly,
if one defendant has confessed and has implicated the co-defendants,
that confession can not be admitted unless the confessing defendant
takes the stand. [Fn. 12] The problem is that, unless the
confessing defendant takes the stand, their confession is admissible
only as the statement of a party opponent. [Fn. 13] Thus, the
confession would be admissible against the defendant who made the
confession, but inadmissible against the other defendants. The
Supreme Court had previously held that this problem could be solved
by instructing the jurors that the confession could be used only to
assess the confessing defendant's guilt, not the guilt of the other
defendants. [Fn. 14] But in Bruton the Supreme Court reversed
course and rejected this solution. The Court concluded that, once
the jury heard that one of the defendants had confessed and had
implicated one or more co-defendants, the jurors simply could not
be trusted to obey an instruction that forbade them from considering
that confession when assessing the guilt of the other defendants.
[Fn. 15]
The "implicit element" approach to the corpus delicti rule
suffers from this same psychological difficulty. Under this
approach, if the trial judge rules that corpus delicti is satisfied,
the jury would hear the defendant's confession, only to later be
asked to set the confession to one side and determine whether the
government's remaining evidence is sufficient to establish the
corpus delicti. One might doubt whether jurors, having heard the
defendant's confession to a heinous crime, could dispassionately
discharge this duty.
But we need not delve farther into the arguable merits or
defects of the "implicit elements" approach. Since territorial days,
Alaska cases appear to have followed the "evidentiary foundation"
approach to the corpus delicti rule.
The first Alaska case on this subject ultimately made its
way to the United States Supreme Court. In Perovich v. United
States [Fn. 16], the defendant appealed his conviction for murder.
One of Perovich's claims of error was that his jury had not been
instructed on corpus delicti. The Supreme Court ruled that no
instruction was necessary:
Error is also alleged in refusing an
instruction as to the evidence necessary to establish the corpus
delicti. It is enough, in answer to this objection, to refer to the
summary of the testimony we have already given, and to note the fact
that the court instructed that the evidence must be such as to
satisfy the jury beyond a reasonable doubt.
Perovich, 205 U.S. at 91-92, 27 S.Ct. at 458.
In other words, the Supreme Court viewed the issue of
corpus delicti as a legal determination to be made by the court.
If the government's evidence is sufficient to establish the corpus
delicti, then the defendant's confession is admissible and the case
goes to the jury. At that point, the only question facing the jury
is whether the government's evidence, taken as a whole, proves every
element of the crime beyond a reasonable doubt.
This view that the decision regarding corpus delicti
is to be made by the trial judge, not the jury was echoed by the
Alaska Supreme Court in Jacinth v. State:
In order to justify submitting this case to the
jury, therefore, the trial judge was required to have found
"substantial independent evidence which would tend to establish the
trustworthiness" of Jacinth's confession. ... [W]e can detect no
error in the superior court's finding that appellant's confession
was sufficiently corroborated to justify presenting the case to a
jury.
593 P.2d 263, 266 (Alaska 1979) (emphasis added).
The supreme court's decision in Castillo v. State [Fn.
17] offers another instance where the court treated corpus delicti
as an issue of law an issue of evidentiary sufficiency to be
decided by the trial judge. The defendant in Castillo argued that
it was the State's burden to establish corpus delicti at grand jury,
but the supreme court declined to decide whether the corpus delicti
rule applied to grand jury proceedings. The court avoided deciding
this issue because it concluded that, "even if required, there was
sufficient proof of the corpus delicti to support the indictment".
[Fn. 18]
The supreme court's decision in Castillo is at odds with
the "implicit element" approach to corpus delicti. If the supreme
court had believed that corpus delicti posed a jury question, then
the court could not have decided the sufficiency of the State's
evidence by simply reviewing the grand jury record on its own.
Regardless of whether the State's evidence was facially sufficient
to establish the corpus delicti, the supreme court would have had
to invalidate Castillo's indictment because the grand jury was never
asked to decide this "element" of the State's proof. The fact that
the supreme court decided the corpus delicti issue based on its
appellate review of the grand jury record shows that the court was
following the "evidentiary foundation" approach to the corpus delicti
rule.
This court has likewise adhered to the view that the
corpus delicti is the evidentiary foundation that must be
established before the State will be allowed to introduce evidence
of a defendant's confession. As we said in State v. McDonald, "The
usual statement [of the rule] is ... that there must be proof
aliunde of the corpus delicti before an extra-judicial confession
may be admitted in evidence." [Fn. 19] And our past decisions in
this area show that we, like the supreme court, view corpus delicti
as a sufficiency-of-the-evidence question to be decided by a judge,
not the jury.
For example, in Drumbarger v. State [Fn. 20], the
defendant argued that some of the State's evidence had been
inadmissible hearsay, and that the State's case, stripped of this
hearsay, was insufficient to establish the corpus delicti of some
of the charged offenses. [Fn. 21] But this court held that "the
corpus delicti requirement would be satisfied even assuming all of
the challenged hearsay had been inadmissible." [Fn. 22] We reached
this conclusion by independently examining the State's evidence to
see whether it satisfied the corpus delicti rule. [Fn. 23]
Our decision in Drumbarger implicitly relies on the
proposition that, like sufficiency of the evidence, corpus delicti
is a question of law for the trial judge and, later, for the
reviewing court. We rejected Drumbarger's corpus delicti challenge
by deciding that, even if all the challenged hearsay evidence was
wrongly admitted, the State's evidence would still establish corpus
delicti. We would not have discussed the corpus delicti issue in
this manner if we had believed that corpus delicti was ultimately
a jury question.
Normally, when a defendant claims that the government's
case rested on inadmissible evidence and the reviewing court agrees,
the reviewing court must not only determine whether the State's
remaining evidence is sufficient to support the conviction but must
also determine whether the inadmissible evidence might have
substantially affected the jury's view of the case. [Fn. 24] But
we did not ask this second question in Drumbarger. Instead, having
concluded that the State's remaining evidence (minus the challenged
hearsay) was sufficient to establish the corpus delicti, we rejected
Drumbarger's corpus delicti argument with never a mention of the
jury.
Our decision in McKenzie v. State [Fn. 25] reflects the
same approach. When assessing the sufficiency of the State's
evidence to establish the corpus delicti, this court did not mention
the jury or discuss how the jurors might have viewed the evidence.
Likewise, we did not mention the trial judge's interpretation of the
evidence or discuss whether the trial judge might have abused his
discretion in ruling that the corpus delicti had been established.
Rather, we treated corpus delicti as an issue of law: we analyzed
the State's evidence and independently determined whether it was
sufficient to satisfy the rule. [Fn. 26]
This review of Alaska cases shows that this court and the
Alaska Supreme Court have consistently followed the approach
established in 1907 by the United States Supreme Court in Perovich.
Under this "evidentiary foundation" approach to corpus delicti, the
trial judge assesses the sufficiency of the State's evidence to
establish the corpus delicti. If the evidence is sufficient, then
the State can introduce the defendant's confession. When the case
goes to the jury, the jury is not asked to re-assess the corpus
delicti. Instead, the jury is simply asked to determine whether the
State has proved its case beyond a reasonable doubt. If the
defendant is convicted and appeals the corpus delicti ruling, the
appellate court treats the issue as a question of law, a question
to be decided by assessing, de novo, the legal sufficiency of the
State's evidence to establish the corpus delicti.
Despite Alaska's apparent adoption of the "evidentiary
foundation" approach to corpus delicti, there is no Alaska decision
(leaving aside the United States Supreme Court's decision in
Perovich) squarely holding that corpus delicti is not a jury issue.
Neither of the parties to the present appeal has briefed this
question. And, as we noted before, Wigmore lists a number of cases
adopting or supporting the view that juries should re-assess corpus
delicti even after the trial judge determines that the defendant's
confession is admissible.
For these reasons, we are hesitant to squarely hold that
corpus delicti is exclusively an issue for the trial judge, not the
jury. But we need not decide this question to resolve Dodds's
appeal.
As explained above, Dodds did not object to the fact that
the jury received no instruction on corpus delicti. He must
therefore show that the trial judge's failure to instruct the jury
on this subject constituted plain error. When a legal matter is
subject to reasonable dispute, so that competent judges and
attorneys might reasonably disagree concerning the answer, there is
no plain error. [Fn. 27]
On the question of whether a jury needs to be instructed
on corpus delicti, our prior cases strongly suggest that the jury
does not decide this issue and that no corpus delicti instruction
is necessary. Whatever might be said in favor of a contrary rule,
it is clear that competent judges and attorneys could reasonably
conclude that there was no error in failing to instruct the jury
regarding corpus delicti. This being so, Dodds has failed to show
that his trial judge committed plain error when the judge omitted
a corpus delicti instruction.
We also note that when a defendant claims plain error
arising from the jury instructions, the defendant must prove that
the error led to a miscarriage of justice. [Fn. 28] Dodds's jury
was instructed that the State was obliged to prove every element of
the charge beyond a reasonable doubt. In addition, the pattern jury
instruction informed the jurors that they were "the exclusive judges"
on the issues of whether Dodds in fact made the confession and, if
he did, whether "the statement [was] true in whole or in part."
Finally, the fact that the robbery occurred was not seriously
disputed. Under these circumstances, the lack of a corpus delicti
instruction did not manifestly prejudice the fairness of Dodds's
trial.
Conclusion
Dodds argues that the corpus delicti rule restricts a
jury's consideration of a defendant's confession, and it was
therefore plain error for the trial judge not to instruct the jury
concerning the corpus delicti rule. But we have concluded that,
because the occurrence of the robbery was essentially undisputed,
Dodds's case raises no real corpus delicti issue. Additionally, we
have concluded that competent judges and attorneys, familiar with
Alaska law on this subject, could reasonably conclude that a jury
need not be instructed on corpus delicti even when the issue is
disputed. For these reasons, we hold that Dodds has failed to
demonstrate plain error.
The judgement of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
AS 11.41.500(a).
Footnote 2:
See Castillo v. State, 614 P.2d 756, 758 (Alaska 1980);
Armstrong v. State, 502 P.2d 440, 447 (Alaska 1972).
Footnote 3:
See Rollin M. Perkins & Ronald N. Boyce, Criminal Law (3rd ed.
1982), pp. 143-44; Wayne R. LaFave and Austin W. Scott, Jr.,
Substantive Criminal Law (1986), sec. 1.4(b), Vol. 1, pp. 24-25.
Often, for analytical purposes, the first factor (the
occurrence of harm) is split into two components. Under this
analysis, the government must prove (1A) that the specified harm
occurred, and (1B) that this harm occurred through criminal agency
(as opposed to accident or natural causes). See Perkins & Boyce,
id.; LaFave & Scott, id..
Footnote 4:
See Perkins & Boyce, id.; LaFave & Scott, id.; John H.
Wigmore, Evidence at Trials at Common Law (Chadbourn rev'n, 1978),
sec. 2072, Vol. VII, pp. 524-28. And see State v. Lung, 423 P.2d
72, 76 (Wash. 1967) ("The corpus delicti in a homicide case ... does
not
require proof of a causal relation between the death and the
accused."); People v. Ott, 148 Cal.Rptr. 479, 487 (Cal. App. 1978)
("[T]he identity of the perpetrator is not a part of the corpus
delicti ... .").
Footnote 5:
See Castillo v. State, 614 P.2d 756, 759-760 (Alaska 1980)
("[O]ur corpus delicti doctrine does not require proof that the
criminal activity was that of the defendant ... . To require proof
that the defendant was the [culprit] as an essential element of the
corpus delicti [would be] absurd."); see also Winters v. State, 646
P.2d 867, 872 (Alaska App. 1982) (citing and following Castillo).
Footnote 6:
See Potts v. State, 712 P.2d 385, 390 (Alaska App. 1985) ("A
plain error is one that is (1) so obvious that it must have been
apparent to a competent judge and a competent lawyer even without
an objection and (2) so substantially prejudicial that failing to
correct it on appeal would perpetuate a miscarriage of justice.");
see also Adams v. State, 927 P.2d 751, 756 (Alaska App. 1996) (plain
error is "[an] impropriety ... so flagrant as to undermine the
fundamental fairness of the trial.") (quotation omitted).
Footnote 7:
See United States v. Kerley, 838 F.2d 932, 940 (7th Cir. 1988)
(failure to instruct the jury on corpus delicti was not plain error
when the defendant did not dispute the occurrence of the crime).
Footnote 8:
See Pon Wing Quong v. United States, 111 F.2d 751, 756 (9th
Cir. 1940) ("It is, of course, settled that the confession cannot
be admitted until the corpus delicti has been established.").
Footnote 9:
Wigmore, supra, n. 4 sec. 2703, Vol. VII, pp. 529-530 ("That
the
evidence of the corpus delicti should be put in before a confession
is certainly good practice, and is occasionally said to be the rule;
but the better view is that the trial judge may determine the order
of this evidence ... .").
Footnote 10:
See Armstrong, 502 P.2d at 447-48 & n.21 (In a manslaughter
prosecution, the trial judge had the discretion to let the
government introduce the defendant's confession before the
government introduced independent proof that the victim had died by
criminal means although the supreme court suggested that "[i]t
would appear to be better practice" to require the government to
establish the corpus delicti first.).
Footnote 11:
Wigmore, sec. 2073, Vol. VII, pp. 531-32, n.4.
Footnote 12:
See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20
L.Ed.2d 476 (1968).
Footnote 13:
See Alaska Evidence Rule 801(d)(2)(A).
Footnote 14:
See Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294,
1 L.Ed.2d 278 (1957).
Footnote 15:
Bruton, 391 U.S. at 126, 128-29; 88 S.Ct. at 1622-24.
Footnote 16:
205 U.S. 86, 27 S.Ct. 456, 51 L.Ed. 722 (1907).
Footnote 17:
614 P.2d 756 (Alaska 1980).
Footnote 18:
Id., 614 P.2d at 758 n.2.
Footnote 19:
872 P.2d 627, 653 (Alaska App. 1994) (quoting Rollin M.
Perkins, The Corpus Delicti of Murder, 48 Va.L.Rev. 173, 179 (March
1962)).
Footnote 20:
716 P.2d 6 (Alaska App. 1986).
Footnote 21:
See id. at 12.
Footnote 22:
Id.
Footnote 23:
See id.
Footnote 24:
See Love v. State, 457 P.2d 622, 629-631 (Alaska 1969).
Footnote 25:
776 P.2d 351 (Alaska App. 1989).
Footnote 26:
See id. at 352.
Footnote 27:
See Marrone v. State, 653 P.2d 672, 676 (Alaska App. 1982).
Footnote 28:
See Estate of McCoy, 844 P.2d 1131, 1134 (Alaska 1993): "
Plain error will be found only when an erroneous
instruction creates 'a high likelihood that the jury followed an
erroneous theory[,] resulting in a miscarriage of justice.' Holiday
Inns of America, Inc. v. Peck, 520 P.2d 87, 91 (Alaska 1974). As
this court more recently stated, the ultimate determination in
analyzing plain error in jury instructions is simply whether a
correct instruction would have likely altered the result. Conam
Alaska v. Bell Lavalin, Inc., 842 P.2d 148, 153 (Alaska 1992)
(citations omitted)."
