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Archives for November 12, 2013

Burying the Body—Dismantling the Corpus Delicti Rule and Adopting the Trustworthiness Standard (Part 2)

Evig_SamuelBy Samuel A. Evig

Editor’s Note: This is Part 2 of a two-part series. Part 1 is available hereThe article originally appeared in the November 2013 issue of The Colorado Lawyer.

Evidence Corroborating a Confession

The LaRosa Court articulated three distinct ways in which evidence can corroborate a confession, and these three ways seem only to confound the philosophical question of whether trustworthiness is an interpretation of corpus delicti or replacement for it. Further, although the Court articulated three ways to corroborate confessions, it provided no examples or guidance to illustrate those methods. Trial courts, at least initially, must rely on case law from other jurisdictions to guide their rulings. Although the opinion provides little distinct guidance, analyzing the three methods helps to sketch the outlines of the standard.

The first method the Court articulated is when facts provided at trial “corroborate facts contained in the confession.”[1] Under this scenario, the visitor logs provided by the prosecution in LaRosa would help to corroborate the confession.[2] Those logs corroborate facts contained in the confession—LaRosa’s statement about where and when the offense happened. Cases interpreting the trustworthiness doctrine do not require independent corroboration for each fact articulated in a confession.[3] All that is required is that some facts corroborate some parts of the confession.

U.S. v. Kirk[4] illustrates this method of corroborating a confession. There, Kirk confessed to trading drugs for a handgun, and was found in possession of a handgun.[5] Authorities charged him with distributing a controlled substance in relation to the incident where he obtained a handgun.[6] No witness testified about any of the facts of that sale, except the witnesses presenting Kirk’s confessions. The non-confession evidence offered by the prosecution (possession of a gun, possession of drugs, Kirk’s prior history of drug distribution) would not, by themselves, have been sufficient to convict him of drug distribution.

Yet the appellate court upheld Kirk’s conviction, relying on the “detailed nature” of Kirk’s confessions, evidence showing Kirk had significant prior involvement in drug trafficking, the physical evidence near him (a gun, drugs, and drug paraphernalia), and a second confession to a cellmate.[7] The court noted, in terms of the necessary evidentiary standard, that the “evidence need not be sufficient, on its own, to establish the body of the offense beyond a reasonable doubt, or even by a preponderance of the evidence.”[8] In the Kirk case, the finding of the gun (alleged proceeds from an earlier drug transaction), along with the other factors, provided sufficient corroboration.[9]

The second way to corroborate the confession, according to LaRosa, is for the prosecution to “provide facts that establish the crime which corroborate facts contained in the confession.”[10] Although this method sounds like the first, it applies in situations where the prosecution proves the existence of a crime, but has to rely on the confession to prove a key element of it—such as the identity of the perpetrator. One way to distinguish these two methods is that the first uses corroboration to prove a crime occurred, while the second uses corroboration to show who committed a crime.

An example of this method of corroboration comes from Fontenot v. State.[11]There, authorities accused Fontenot of a robbery that turned into a kidnapping and first-degree murder.[12] Fontenot made incriminating statements to a friend and fellow inmate that fell short of outright confessions but that implicated him, and he made a detailed confession to police admitting involvement in the kidnapping and robbery.[13] His confession to police implicated a third party as the actual killer, but that third party was later exonerated.[14] At trial, independent, non-confession evidence proved a crime happened. The victim, clearly, had been murdered; yet none of the non-confession evidence proved Fontenot’s involvement.

The court, applying a trustworthiness standard, analyzed evidence at trial and affirmed the conviction. The court first found the statements he made to a cellmate and to a friend to be of a different character than his outright confession to police—and these statements buttressed the confession to police.[15] In addition, the court considered the similarities between the non-confession evidence and the confession evidence. Among other similarities, the court noted that witnesses’ descriptions of the abductor’s truck matched what Fontenot described, that the amount taken during the robbery roughly matched the amount Fontenot admitted he stole, and that descriptions of the clothing the victim wore during the abduction matched the description Fontenot gave of the robbery victim’s clothing.[16] Although the case contained conflicting evidence, the court found all that was necessary was that the confession be corroborated in some manner.[17] Because facts presented at trial corroborated specific facts in the confession; the confession was trustworthy and served to prove Fontenot’s involvement in the crime.

The third way to corroborate a confession is when “facts under which the confession was made show that the confession is trustworthy or reliable.”[18] It is the LaRosa Court’s inclusion of this third method that makes the case unique, and that kindles the debate about whether the Court was jettisoning the corpus delecti rule or merely interpreting it. Deciding whether a confession is itself sufficiently reliable to be trustworthy involves a host of factors, many of which apply to the more common but related problem of deciding when to suppress a confession as involuntary under the Fifth Amendment.[19]

First, a court may consider the person to whom the defendant confessed, because a confession to a friend or family member may not carry the same concerns of coercion or overreaching as a confession to police.[20] Second, the circumstances prompting the confession may be relevant—because some circumstances provide a very clear motive to falsely confess.[21] When the confession occurred in relation to when the suspect became aware of an investigation also can be important, because the lack of an investigation eliminates the possibility of police coercion.[22] Some courts even consider whether the suspect confessed more than one time,[23] although other courts disagree with this reasoning.[24] Still other courts look for information within the confession that is not available to the public or that shows an independent source of knowledge.[25]

As the LaRosa Court noted, “[t]he corroborating facts may be of any sort whatever, provided only that they tend to produce a confidence in the truth of the confession.”[26] If Colorado follows case law from other jurisdictions, almost anything corroborating the confession can be used to support it. The question then becomes exactly what standard of proof is necessary for the corroboration and how does a court determine what is sufficient corroboration.

The Evidentiary Standards

The question of what level the corroboration must meet to support a confession-based conviction is at the heart of the argument between the LaRosa dissenters and the majority. Neither the dissent nor the majority argues that the trustworthiness standard affects the admission of confessions. Instead, the standard presents a question of sufficiency to support conviction.[27] Both the dissent and the majority understand that the trial court—as opposed to a jury—makes a decision regarding the legal sufficiency of the evidence. Where the parties disagree is whether the standard is incorporated into Colorado’s existing sufficiency of the evidence law or is something new. Understanding the dissent’s position on this issue is a useful way to understand the application of the new rule.

First, the dissent argues the majority misinterpreted the Opper series of cases because those cases did not create a new standard but only imposed a way of interpreting the common-law rule of corpus delicti for federal courts.[28] The dissent argues the trustworthiness standard is the kind of “open-ended balancing test exhaustively disparaged and ultimately rejected as constitutionally inadequate by the Supreme Court.”[29] Besides being too open-ended, the dissent asserts the “substantial evidence standard” overruled corpus delicti and that LaRosa should have been decided on this basis alone.[30]

The “substantial evidence standard” mentioned by the dissent is set forth in Crim.P. 29. It permits the defense to move for judgment of acquittal once the prosecution rests.[31] The test for such motions is articulated in People v. Bennett.[32] Under Bennett, the trial court must consider whether

the relevant evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable mind that the defendant is guilty of the charge beyond a reasonable doubt.[33]

The test requires the prosecution to have provided evidence, sufficient to convict, for each element of the crime.

The LaRosa dissent argues that the substantial evidence standard, adopted by our rules of criminal procedure, implicitly overturned the common law of corpus delicti.[34] The argument is that Crim.P. 29 now requires all the evidence, including stand-alone confessions, to be viewed in the light most favorable to the prosecution, that the rule has long eliminated any distinction between direct and circumstantial evidence, and thus a confession standing alone often will be sufficient to defeat a motion for judgment of acquittal. That is, the jury should decide whether a confession in any particular case is sufficient to prove guilt beyond a reasonable doubt.

The majority does not go so far. Instead, it states that the trustworthiness standard is to be treated “like a rule affecting the sufficiency of the evidence to be analyzed by the court following a motion for judgment of acquittal.”[35] The key difference, according to the majority, is that the trustworthiness standard focuses not on the elements of the crime, but only on the evidence corroborating the confession itself.[36] Thus, it serves a different purpose than the sufficiency of the evidence test.[37]

The majority did not articulate what should happen if a trustworthy confession is the sole piece of incriminating evidence. Based on the limited guidance in the opinion, if that confession is trustworthy, it should suffice to support a conviction (assuming it provides evidence for each material element of the crime). That seems to be the whole reason behind jettisoning the corpus delicti rule. Of course, the corollary to that reasoning is that if the confession is not trustworthy, and it is the sole piece of incriminating evidence, the majority would bless the trial court granting the motion for judgment of acquittal.

The dissent would not engage in a trustworthiness analysis at all, and instead simply would apply the substantial evidence standard to reach a decision. Under the dissent’s position, an uncorroborated confession must be viewed in the light most favorable to the prosecution—that is, it must be viewed as trustworthy—and in that light would never justify a judgment of acquittal.

Guidance for Practitioners

Practitioners first need to be aware of when the trustworthiness doctrine applies. It does not apply to all cases with confessions; only cases where the primary piece of incriminatory evidence is a confession should be affected. Another way of recognizing affected cases is for attorneys to ask themselves whether the case has proof, other than the confession, which if true would be sufficient to sustain a conviction. In terms of typical fact patterns, attorneys should beware of inchoate crimes and crimes with silent victims (pre-verbal children, disabled persons, or deceased victims where the cause of death is at issue).

Practitioners need to recognize a second issue regarding whether the standard applies. That issue involves whether Colorado courts will find a difference between “admissions” and “confessions.”[38] Some courts, based on their reading of Opper, do not distinguish between admissions and confessions.[39] But other courts do.[40] Still other courts do not make the admission/confession distinction, but find some kinds of statements (pre-investigation statements for instance) so reliable as to require no corroborating evidence.[41] There are strong policy reasons to treat admissions and confessions made before a criminal investigation differently—namely, there should be no real concern about police overreaching when police are not yet involved. Where Colorado falls on the spectrum of admissions versus confessions or pre-investigation statements versus post-investigation statements is not at all clear.

If the confession is the primary piece of incriminating evidence, the practitioner needs to examine whether other facts corroborate facts within the confession, whether facts establish the crime the confession describes, and the specific facts surrounding the confession itself.[42] As noted above, case law from other jurisdictions is likely to be persuasive given the lack of Colorado law on this topic. The flexibility of the standard means almost anything is in play at this point to help corroborate the confession.

Conclusion

The fine lines defining this new doctrine have yet to be sketched by Colorado’s appellate courts. Some case law is necessary to fill in the cracks of this new construction. Until then, the one clear point from LaRosa is that it gives prosecutors a fighting chance in cases where victims cannot speak for themselves. For the defense bar, LaRosa signals a shift as well, because under corpus delicti, the defense could have a hearing before trial on the issue and, if successful, avoid trial altogether.[43] The current guidance in LaRosa indicates the proper time to apply the test is “like a rule affecting the sufficiency of the evidence to be analyzed by the court following a motion for judgment of acquittal.”[44] Further, proving that a confession is trustworthy is often much easier than proving the crime happened—which is something both the defense bar and prosecutors may need to consider in plea bargaining cases. Ultimately, the decision creates new issues for both prosecutors and defense attorneys in some of the most difficult cases for both sides.

Samuel A. Evig is a deputy district attorney in the 18th Judicial District—sevig@da18.state.co.us. The views expressed in this article are not necessarily those of the 18th Judicial District Attorney’s Office.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

 

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[1] LaRosa, 293 P.3d at 578.

[2] The majority opinion in LaRosa does not explicitly decide whether the evidence presented would be enough to support his conviction under the trustworthiness standard. The majority does not address this issue because they decided application of the new standard would violate his due process rights. LaRosa, 293 P.3d at 578-79. Given that the Court found corpus delicti could operate to frustrate justice in crimes against very young children, and that the Court found this reasoning (along with other factors) sufficient to overturn the rule, it seems likely the Court would have upheld a trial court finding of sufficient corroboration. In fact, the Court cited both Robson and Meredith as support for cases in which convictions were barred by the rule in its discussion. Id. at 575. Those cases, for the most part, are factually indistinguishable from LaRosa. The implicit guidance of the opinion is that if the case were decided under the trustworthiness standard, LaRosa’s conviction would stand.

[3] Moran, supra note 3 at 852. Moran argues independent evidence can bolster “any aspect of the confession, including obvious and uncontroverted facts,” and thus the rule does not protect defendants as well as corpus delicti. See also U.S. v. Sterling, 555 F.3d 452 (5th Cir. 2009) (prosecution need not corroborate each part of a confession for it to support a conviction; rather, the corroboration of portions of the statement suffice to corroborate the statement as a whole); Heiges, 779 N.W.2d at 912-13 (analyzing a confession of a mother to drowning her newborn child under a Minnesota statute requiring corroboration of confessions and holding corroboration is not necessary for every part of the confession).

[4] U.S. v. Kirk, 528 F.3d 1002, 1106-07 (8th Cir. 2008).

[5] Id.

[6] Id. at 1110.

[7] Id. at 1112-13.

[8] Id. at 1111, citing U.S. v. Eagle, 515 F.3d 794, 807 (8th Cir. 2008) and Whiteside v. U.S., 346 F.2d 500, 505 (8th Cir. 1965).

[9] A similar case is Sterling, 555 F.3d at 456-57. There, a defendant confessed to acquiring a gun in a drug deal sometime before his arrest. The appellate court upheld the trial court’s decision to find the confession corroborated (even though defendant took the stand and recanted the confession) based on officers finding the gun, prior act evidence showing Sterling had dealt drugs, and the facts of the confession being specific enough to enhance its reliability.

[10] LaRosa, 293 P.3d at 578.

[11] See generally Fontenot II, 881 P.2d 69.

[12] Id. at 73-74, citing Fontenot v. State, 742 P.2d 31 (Okla.Cr. 1987) (Fontenot I).

[13] Id. at 76-78. The specific statements that were not to made police involved him telling a friend he knew the identity of the criminals and telling a cellmate that he “knew we’d get caught.”

[14] The confession he made to police was similar to a confession provided by a co-defendant named Ward. Both men attempted to cast blame for the actual homicide on a third person, Tidwell. Evidence conclusively proved that Tidwell had no involvement. See Fontenot I, 742 P.2d at 31; Fontenot II, 881 P.2d at 79. Here, the trustworthy confession was trustworthy in the general sense to prove Fontenot’s involvement in the crime, but obviously not trustworthy in all its details.

[15] Fontenot II, 881 P.2d at 78.

[16] Id. at 78-79.

[17] The inconsistencies were not minor. Fontenot stated the victim was stabbed, but forensics showed she was shot; the body was not found where he said it would be; and there was no evidence the body had been set on fire, as he claimed it had. Id. at 79. In addition, the person Fontenot implicated as a conspirator was exonerated. As noted by the Fontenot II Court, the standard does not require that there be “no inconsistencies whatsoever between the facts proven and the facts related in the confession.” Only when the inconsistencies “so overwhelm the similarities” is a confession rendered untrustworthy. Otherwise, the jury decides what weight to assign to the confession.

[18] LaRosa, 293 P.3d at 578.

[19] There is an expansive body of case law regarding the voluntariness of confessions. See generally Colorado v. Connelly, 479 U.S. 157 (1986); People v. Gennings, 808 P.2d 839 (Colo. 1991). Although the factors articulated in these cases and their progeny play into the trustworthiness analysis, practitioners must remember that trustworthiness is a sufficiency finding, as opposed to an admissibility finding. Further, although a confession may or may not be voluntary, that does not, by itself, render it trustworthy. See In re K.A., 60 A.3d 442.

[20] Heiges, 779 N.W.2d at 911; Fontenot II, 881 P.2d at 78.

[21] In re K.A., 60 A.3d 442 at 450.

[22] Heiges, 779 N.W.2d at 911.

[23] Tilley v. State, 963 P.2d 607, 612 (Ok.Crim.App. 1998) (upholding a murder conviction against a claim of lack of trustworthiness of confessions based, in part, on the finding that there were multiple confessions) superseded by statute on other grounds in Coddington v. State, 142 P.3d 437 (Ok.Crim.App. 2006).

[24] Weisser, 150 P.3d at 1051. Weisser specifically held that multiple confessions do not establish the trustworthiness of such statements. The factual context of the case involved a man confessing to molesting a child on several occasions, then claiming Huntington’s disease caused the confessions.

[25] Mauchley, 67 P.3d at 489.

[26] LaRosa, 293 P.3d at 577-78, citing Wigmore on Evidence § 2071 at 511.

[27] Id. at 578. The majority states, in a paragraph about whether the trustworthiness standard is a rule affecting admissibility or sufficiency, that “the better approach is to treat the trustworthiness standard, at least for procedural purposes, like a rule affecting the sufficiency of evidence to be analyzed by the court following a motion for judgment of acquittal.” The dissent agrees the test is one of sufficiency. See id. at 580-81. Other jurisdictions find the test to be one of admissibility. See Mauchley, 67 P.3d at 490.

[28] LaRosa, 293 P.3d at 580.

[29] Id., citing Crawford v. Washington, 541 U.S. 36, 68 (2004). In this argument, the dissent is not alone. See Moran, supra note 3 at 851-53. The majority even notes some state courts reject the very arguments the majority adopted. LaRosa, 293 P.3d at 579, citing People v. McMahan, 548 N.W.2d 199, 204 (Mich. 1996) and State v. Ray, 926 P.2d 904, 906 (Wash. 1996) (court applying the corpus delicti rule overturned the conviction of a defendant who molested his 3-year-old child).

[30] LaRosa, 293 P.3d at 581.

[31] This is, of course, a useful simplification, because Rule 29 lists several times at which the defense may raise the motion.

[32] People v. Bennett, 515 P.2d 466, 469 (Colo. 1973).

[33] Id.

[34] LaRosa, 293 P.3d at 581.

[35] Id. at 578.

[36] Id. at 576.

[37] Id.

[38] The term “confession” means, here, an “admission of guilt.” LaRosa, 293 P.3d at 576. The term “admission” means, here, a statement falling short of admitting guilt, but tending to prove guilt. A good example is Opper’s admission to providing loans (discussed in the text above). His statement did not admit guilt, but tended to prove guilt when viewed with the other evidence in the case.

[39] See State v. Trexler, 342 S.E.2d 878, 880 (N.C. 1986) (describing the difference between admissions and confessions and holding the trustworthiness standard applies to both).

[40] See Fontenot II, 881 P.2d at n.11. The court there found two admissions Fontenot made to be exempt from the rule, and recognized a conflict with Opper. See also Heiges, 779 N.W.2d at 908-13 (incriminatory admissions to non-police witnesses helped to sufficiently corroborate a confession to police).

[41] See U.S. v. Irving, 452 F.3d 110, 118 (2d Cir. 2006) (identifying statements made before the commission of a crime and co-conspirator statements as requiring no corroboration), citing Warszower v. U.S., 312 U.S. 342, 347 (1941) and U.S. v. Simmons, 923 F.2d 934, 954 (2d Cir. 1991).

[42] LaRosa, 293 P.3d at 578.

[43] See Robson, 80 P.3d at 913 (case dismissed after a hearing before trial).

[44] LaRosa, 293 P.3d at 578.

Colorado Court of Appeals: Homeowners’ Association Must Follow Nonprofit Corporation Rules When Amending Declaration Without a Meeting

The Colorado Court of Appeals issued its opinion in Triple Crown at Observatory Village Association, Inc. v. Village Homes of Colorado, Inc. on Thursday, November 7, 2013.

Construction Defect—Interlocutory Review—Revised Nonprofit Corporation Act Relation to Colorado Common Interest Ownership Act—Consumer Protection Act.

Triple Crown at Observatory Village (Triple Crown) is a common interest community organized under the Colorado Common Interest Ownership Act (CCIOA). The developer of Triple Crown, Village Homes of Colorado, Inc. (Village Homes), was Triple Crown’s declarant under CCIOA § 38-33.3-103(12). Village Homes drafted and recorded Triple Crown’s Declaration of Covenants, Conditions, and Restrictions (Declaration). The Declaration created the Triple Crown at Observatory Village Association, Inc. (Association). It was organized as a nonprofit corporation under the Colorado Revised Nonprofit Corporation Act (CRNCA).

Article 14 of the Declaration established a dispute resolution procedure for claims arising from the design or construction of Triple Crown. It required arbitration of claims under American Arbitration Association rules if good faith negotiation and mediation efforts were unsuccessful.

On January 14, 2012, the Association began collecting votes from its members to revoke Article 14. After sixty days, 48% of the members had cast votes in favor of revocation. After another sixty days, the Association had obtained the required 67% of votes to revoke Article 14. The Association recorded the amendment revoking Article 14. The Association then brought this action against Village Homes and several of its principals and employees (collectively, respondents), alleging negligent construction, Colorado Consumer Protection Act (CCPA) violations, and breach of fiduciary duties.

Respondents moved to dismiss for lack of jurisdiction, citing the mandatory arbitration provision in Article 14. They argued that because the Association had not amended Article 14 within the time limits in the CRNCA, they were still bound by the Article 14 dispute resolution procedures. The trial court granted the motion, dismissed the case, and ordered the parties to follow Article 14.

The trial court ruled that when an association amends its declaration without a meeting under CCIOA, the association must comply with the sixty-day time limit provided in CRNCA § 7-127-107. The Court of Appeals agreed. Because the Association did not comply, the amendment was ineffective.

The Court also agreed that CCIOA established the power of unit owners’ associations to “[i]nstitute, defend, or intervene in litigation or administrative proceedings . . . on the matters affecting the common interest community” and that “litigation” includes both judicial proceedings and arbitrations. Therefore, the mandatory arbitration provision did not infringe on the Association’s statutory power to institute litigation.

The Association argued that CCIOA § 38-33.3-302(2) invalidated Article 14. The trial court rejected this argument. The Court agreed with the trial court, finding that the CCIOA section forbids only restrictions unique to the declarant. Article 14 controlled disputes between all parties.

The trial court rejected the Association’s argument that its CCPA claims were not subject to mandatory arbitration, because CCPA provisions “shall be available in a civil action. The Court agreed that such a right can be waived, and Article 14 was such a waiver. The trial court’s order was affirmed and the case was remanded.

Summary and full case available here.

Colorado Supreme Court: Announcement Sheet, 11/12/13

On Tuesday, November 12, 2013, the Colorado Supreme Court issued three published opinions.

People v. $11,200 U.S. Currency and Strand

In re People in Interest of A.A.

People v. Crum

Summaries for these cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.