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Langevin v. State (6/3/2011) ap-2311

Langevin v. State (6/3/2011) ap-2311

                                               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
 
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                         E-mail:   corrections @ appellate.courts.state.ak.us
 

               IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

JERRY W. LANGEVIN, 
                                                             Court of Appeals No. A-10510 
                                Appellant,                  Trial Court No. 4FA-08-3906 Cr 

                        v. 
                                                                    O    P  I  N  I  O  N 
STATE OF ALASKA, 

                                Appellee.                      No. 2311    -   June 3, 2011 

                Appeal     from   the   District  Court,   Fourth    Judicial   District, 
                Fairbanks, Winston S. Burbank, Judge. 

                Appearances:      Jane   B.   Martinez,   Anchorage   (under   contract 
                with the Public Defender Agency), and Quinlan Steiner, Public 
                Defender, Anchorage, for the Appellant. Ben Seekins, Assistant 
                District Attorney, Fairbanks, and Daniel S. Sullivan, Attorney 
                General, Juneau, for the Appellee. 

                Before:     Coats,   Chief   Judge,  and   Mannheimer      and  Bolger, 
                Judges. 

                MANNHEIMER, Judge. 

                Jerry W. Langevin appeals his conviction for driving under the influence. 

This appeal presents three questions concerning the corpus delicti rule - the doctrine 

that a criminal conviction can not rest solely on the defendant's confession. 

----------------------- Page 2-----------------------

                The first question is an issue of law:        whether, under Alaska law, the trial 

judge or the jury is the one who decides whether the government's evidence satisfies the 

corpus delicti rule.     The second question is case-specific:        whether, given the evidence 

presented at Langevin's trial, the State satisfied the corpus delicti requirement.  The third 

question is again a question of law:  when the State fails to satisfy the corpus delicti rule, 

but    when    the  State's   evidence,    taken   as  a  whole   (i.e.,  including   the  defendant's 

confession),   is    sufficient   to  survive   a  motion   for  a  judgement   of   acquittal,   is  the 

defendant's remedy outright dismissal of the criminal charge, or is it a retrial? 

                For the reasons explained in this opinion and in this Court's prior decision 

in Dodds v. State, 997 P.2d 536 (Alaska App. 2000), we conclude that the issue of 

corpus delicti is a question for the trial judge. 

                In addition, for the reasons explained here, we conclude that the State's 

evidence in Langevin's case was not sufficient to comply with Alaska's corpus delicti 

rule. 

                Finally, we hold that when a trial judge erroneously rules that the State has 

satisfied the corpus delicti rule, and this Court reverses the trial judge's ruling on appeal, 

the defendant is entitled to a new trial but not outright dismissal of the charge. 

         Underlying facts 

                In the early morning hours of November 27, 2008, officers of the Fairbanks 

police went to an apartment building in response to a report of a domestic dispute.  This 

report   was   made   by   Langevin's   girlfriend,   Shari   Kelly.    Based   on   what   the   police 

discovered when they arrived, Langevin was charged with driving under the influence. 

Here is the State's evidence, presented in the light most favorable to the jury's verdict: 

                                                 - 2 -                                             2311
 

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                When the police arrived, they found Langevin in the hallway outside his 

apartment.  Langevin told the officers that he had been standing outside for over an hour 

-   that   Kelly   had   taken   his   keys   and   had   locked   him   out   of   their   residence. This 

statement was verified when the police entered the residence and interviewed Kelly; they 

found the keys in her possession. 

                Langevin was visibly intoxicated; in fact, he conceded to the officers that 

he was "three sheets to the wind".  However, Langevin also stated several times that he 

had not had anything to drink since he arrived home.                Rather, Langevin said, he and 

Kelly had been drinking at the Manchu Bar earlier that night. 

                According to Langevin, he and Kelly stayed at the bar until closing time 

(which, under Fairbanks law, would have been 3:00 a.m.), and then he started driving 

them home.      In his statements to the police, Langevin gave two accounts of how his 

driving ended.     At one point in the interview, Langevin indicated that he drove all the 

way home, at which point he stopped and said, "I'm not driving no more, period.                      I'm 

throwing the keys away."  But at another point in the interview, Langevin said that Kelly 

grabbed the keys while he was driving (i.e., while the keys were in the ignition) and 

turned the truck off. 

                Langevin pointed out the truck that he had driven. However, the police did 

not   check   the   truck   to   see   if   the   engine   was   warm   or   to   see   if   there   was   any   other 

indication that the truck had been recently driven. 

                Langevin's statement that he had not been drinking since he came home 

was corroborated by the fact that the officers could not see any containers of alcoholic 

beverages in Langevin's vicinity. 

                At Langevin's trial, the State did not call Kelly as a witness, nor did the 

State present any other witnesses who had actually seen Langevin driving the truck, or 

who had seen Langevin and Kelly at the Manchu Bar earlier that morning. 

                                                  - 3 -                                             2311
 

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                 At the close of the State's case, Langevin's attorney asked the district court 

to enter a judgement of acquittal on the basis that the State had failed to satisfy the 

corpus delicti rule, by failing to introduce evidence (apart from Langevin's statements 

to   the   police)   to   establish   that   the   crime   of   driving   under   the   influence   had   been 

committed.      The district court denied this motion.          Langevin's attorney also asked the 

trial   judge   to   instruct   the   jury   on   the  corpus   delicti  rule   (i.e.,   telling   the   jurors   that 

Langevin could not be convicted unless the jurors concluded that the State had satisfied 

the corpus delicti rule).      The trial judge refused to give the requested instruction.  The 

jury convicted Langevin of driving under the influence. 

         Should the ultimate decision as to whether the government has satisfied the 
         corpus delicti rule be made by the trial judge or, instead, the jury? 

                 Our decision inDodds v. State, 997 P.2d 536, 539-543 (Alaska App. 2000), 

contains a lengthy discussion of the corpus delicti rule and the ways in which this rule 

has been interpreted in American jurisdictions.              Some jurisdictions view corpus delicti 

as   an   evidentiary   foundation      that   the   government   must   lay   in   order   to   justify   the 

introduction of the defendant's out-of-court confession.                 But other jurisdictions view 

corpus delicti as an implicit element of the government's proof (in cases where the 

government introduces evidence of the defendant's confession). 

                 Under the "evidentiary foundation" view, the trial judge decides whether 

the State has satisfied the corpus delicti rule (just as the judge decides other evidentiary 

questions).     But under the   "implicit element" view, the question of corpus delicti is 

decided at the end of the trial by the trier of fact (i.e., by the jury, unless the defendant 

has consented to a bench trial). 

                                                   - 4 -                                               2311
 

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                 Although we discussed this matter at length in Dodds, we did not have to 

decide which of these two approaches was the proper one under Alaska law - because 

Dodds raised the issue as a claim of plain error.  Id. at 543.  But in Langevin's case, the 

defense attorney explicitly asked to have the jury decide whether the State had satisfied 

the requirements of the corpus delicti rule, so we must now declare Alaska law on this 

issue. 

                 As we explained in Dodds, Alaska cases (both before and after statehood) 
have followed the "evidentiary foundation" approach to corpus delicti. 1                      That is, the 

corpus delicti rule has been interpreted   in Alaska as a rule that defines the level of 

supporting   evidence   that   the   government   must   present   if   the   government   wishes   to 

introduce the defendant's out-of-court confession for the truth of the matters asserted. 

Under this approach, 

                 [The] decision [regarding corpus delicti is] made by the trial 
                 judge before the case is submitted to the jury.               The judge 
                 [assesses] the sufficiency of the State's evidence to prove the 
                 corpus delicti, and this decision [is] 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 [rules] that thecorpus delicti 
                 had    been   established,     then,   at  the  end   of  trial,  the  jury 
                 [considers]   all   of   the   evidence   (including   the   defendant's 
                 confession) and [decides] whether the State [has] established 
                 each    element   of   the   charged    crime    beyond     a  reasonable 
                 doubt. 

    1   See  Perovich   v.   United   States,   205   U.S.   86,   27   S.Ct.   456,   51   L.Ed.   722   (1907); 

Castillo v. State, 614 P.2d 756 (Alaska 1980); Drumbarger v. State, 716 P.2d 6 (Alaska App. 
1986);McKenzie v. State, 776 P.2d 351 (Alaska App. 1989).   We discussed all four of these 
cases in detail in Dodds, 997 P.2d at 541-43. 

                                                   - 5 -                                                 2311 

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Dodds, 997 P.2d at 540. 

                In his brief to this Court, Langevin points out that several other jurisdictions 

follow the "implicit element" approach to corpus delicti, and he urges us to do the same. 

But Langevin does not address the prior Alaska cases on this issue - cases which follow 

the "evidentiary foundation" approach - nor does Langevin explain why those cases 

were wrongly decided or should now be abandoned on policy grounds. 

                Moreover, in Dodds we pointed out that the "implicit element" approach 

presents a major difficulty - because, at the end of the trial, the jury is asked to decide 

whether the government has satisfied the corpus delicti rule after the jurors have already 

heard the defendant's confession: 

                        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. 
                [See  Bruton   v.   United   States, 391   U.S. 123, 126,   128-29; 
                88 S.Ct. 1620, 1622, 1624; 20 L.Ed.2d 476 (1968).]  ...  The 
                [Supreme] 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. 

                                                - 6 -                                            2311
 

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                        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. 

Dodds, 997 P.2d at 540-41. 

                Langevin's brief does not address this portion of the Dodds opinion.  But 

Professor LaFave, in his treatise on criminal law, characterizes this passage from Dodds 

as   a   cogent   criticism   of   the   "implicit   element"   approach.   See   Wayne   R.   LaFave, 

Substantive Criminal Law (2nd ed. 2003), § 1.4(b) & n. 33, Vol. 1, pp. 31-32. 

                In    sum,    Alaska    cases   have    historically    employed      the  "evidentiary 

foundation"   approach   to  corpus   delicti,   and   there   are   good   reasons   to   question   the 

"implicit elements" approach.         Accordingly, we now hold that Alaska law follows the 

"evidentiary foundation" approach to corpus delicti. 

                Under the "evidentiary foundation" approach to corpus delicti, the decision 

as to whether the State has satisfied the corpus delicti rule is a decision for the trial judge, 

not the jury.    Therefore, Langevin's trial judge correctly denied Langevin's request to 

have the jury decide this matter. 

                                                  - 7 -                                             2311
 

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        Did    the   State  satisfy   the  requirements      of  the  corpus     delicti  rule  in 
        Langevin's case? 

                The corpus delicti rule is usually described as the doctrine that a criminal 

conviction can not rest solely on the defendant's confession - that the government must 

present independent evidence tending to show that the charged crime did, in fact, occur 

(in   the  sense   that   the  unlawful    act   described   in  the  indictment   or    complaint   was 
committed by someone). 2 

                But under Alaska law, the corpus delicti rule is more accurately described 

as the doctrine that "a criminal conviction can not rest on an uncorroborated confession". 

Dodds, 997 P.2d at 538.  In Alaska, the corpus delicti rule does not focus on whether the 

government has produced independent proof of the criminal act, but instead on whether 

the government has produced substantive corroboration of the defendant's confession. 

                The leading Alaska case on the corpus delicti rule is the supreme court's 

decision in Armstrong v. State, 502 P.2d 440 (Alaska 1972).  InArmstrong , the supreme 

court acknowledged that there was a "wide diversity" in the formulation of the corpus 

delicti rule among American jurisdictions. Id. at 447. The supreme court then declared: 

                 [T]he proper and most workable [corpus delicti] rule is the 
                one   laid   down   for   the   federal   courts   in Opper   v.   United 
                States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954), where 
                the [Supreme Court] held that [the] corroborative evidence 
                need     not  be   sufficient,  independent      of  the  [defendant's] 
                 statements,     to  establish   the   [criminal    act].  Rather,     the 
                prosecution must introduce "substantial independent evidence 
                which   would   tend   to   establish   the   trustworthiness   of   the 

    2   See,  e.g.,   Wayne   R.   LaFave, Substantive Criminal   Law  (2nd   ed.   2003),   §   1.4(b), 

Vol. 1, p. 29. 

                                                  - 8 -                                               2311 

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                [defendant's] statement."        Id., [348 U.S.] at 93, 75 S.Ct. at 
                 164, 99 L.Ed. at 109. 

Armstrong , 502 P.2d at 477. 

                Thus,     under   Alaska    law,   the  government      must    produce    independent 

evidence that substantially corroborates the defendant's confession, but this evidence 

need not independently prove the commission of the crime.  Drumbarger v. State, 716 

P.2d 6, 12 (Alaska App. 1986); McKenzie v. State, 776 P.2d 351 (Alaska App. 1989). 

                TheMcKenzie decision involved an appeal of a conviction for driving under 

the influence, and one of the issues raised on appeal was whether the State's evidence 
was sufficient to satisfy the corpus delicti rule. 3   This Court concluded that the corpus 

delicti rule was satisfied because the State presented evidence that the defendant had a 

blood alcohol level of .17 percent, and the State also presented circumstantial evidence 

that corroborated the defendant's admission that she had been driving:                  the defendant 

was found in the front seat of a car that had apparently just gone off the road, and the 

defendant was the owner of this car.  Id., 776 P.2d at 352. 

                The corpus delicti question in Langevin's case is more difficult because, 

unlike McKenzie, the State presented no independent evidence linking Langevin to the 

recent operation of the vehicle. 

                In McKenzie, the State presented evidence that the defendant was found in 

the vehicle, that the vehicle belonged to her, and that the vehicle had apparently just gone 

off   the   road   -   strong   circumstantial   evidence   that   the   defendant   had   recently   been 

driving the vehicle. But in Langevin's case, there was no evidence that anyone observed 

Langevin in the truck, much less driving the truck.             Moreover, as we explained earlier, 

the State did not call any witnesses to verify Langevin's presence in the Manchu Bar 

    3   776 P.2d at 352. 

                                                  - 9 -                                              2311 

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earlier   that   morning   (which   would   at   least   have   been   circumstantial   evidence   that 

Langevin came home in a motor vehicle).  And the police who investigated this case did 

not check the truck to see if its engine was still warm, or to see if there was any other 

physical evidence in the truck to corroborate Langevin's admission that he had recently 

driven the vehicle. 

                It is true that the police corroborated one significant aspect of Langevin's 

story: his keys were inside the apartment, in the possession of his girlfriend, Shari Kelly. 

But while Kelly's possession of the keys certainly corroborated Langevin's assertion that 

he had quarreled with Kelly, and that she had locked him out of the apartment, Kelly's 

possession of the keys did not corroborate the State's primary assertion that Langevin 

had recently driven the vehicle while he was under the influence. 

                Apart from the inferences that might be drawn from Langevin's admissions 

to the police, there was no independent evidence to establish why Langevin and Kelly 

had quarreled, or when she had taken his keys.             While the independent evidence was 

consistent with Langevin's claim that Kelly took his keys after he drove home under the 

influence, the independent evidence was just as consistent with the supposition that Kelly 

took the keys from Langevin as they were leaving the Manchu Bar, toprevent Langevin 

from assuming physical control of the vehicle while he was under the influence.  Indeed, 

the independent evidence was also just as consistent with the supposition that Langevin 

and Kelly had not been to the Manchu Bar, but rather had been drinking at home, and 

then Kelly quarreled with Langevin and threw him out of the apartment - but kept his 

keys so that he would not be able to drive. 

                Because this was the nature of the evidence at Langevin's trial, we are 

confronted with a question regarding the proper interpretation of the Alaska Supreme 

Court's decision   in Armstrong .        According to Armstrong , the Alaska version of the 

corpus     delicti   rule  requires  the  government      to  introduce   "substantial    independent 

                                                -  10 -                                           2311
 

----------------------- Page 11-----------------------

evidence     which    would     tend  to  establish   the   trustworthiness     of  the  [defendant's] 

statement".    502 P.2d at 477.      The question is how broadly the supreme court intended 

this formulation to be interpreted. 

                Even     though     the   State's   independent      evidence     does   not   need    to 

independently  establish   the   commission   of   the   crime,   must   the   State's   independent 

evidence at least corroborate the defendant's assertion that the crime was committed? 

Or did the supreme court mean that the State's independent evidence does not even have 

to   be  relevant   to  the  issue   of  whether    the  crime    was   committed,     as  long   as  the 

independent evidence tends to corroborate the defendant's confession by lending support 

to other, collateral assertions contained in the defendant's statement - for example, 

Langevin's assertion that Kelly took his keys and locked him out of the apartment? 

                If   we   were   to   give  Armstrong    this   latter,   broader   interpretation,   then 

Alaska's corpus delicti rule would be largely cut off from its common-law roots.  The 

State would be under no obligation to produce independent evidence that the crime to 

which   the   defendant   confessed   actually   occurred.      Rather,   the   State   would   only   be 

obliged to produce evidence tending to corroborate some aspect of the defendant's out­ 

of-court statement - potentially, such collateral details as the defendant's description 

of the weather, or the defendant's description of what was served for dinner. 

                We do not believe that the supreme court intended to depart so far from the 

common-law requirement of corpus delicti. We therefore interpretArmstrong to require 

the State to produce independent evidence that corroborates the defendant's assertion 

that the crime was committed.  This independent evidence can be circumstantial (as was 

the case in McKenzie), but the evidence must be relevant to the issue of whether the 

crime was committed, and not simply to the issue of whether the defendant was speaking 

truthfully. 

                                                 -  11 -                                           2311
 

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                 The State's independent evidence in Langevin's case fails this test.  The 

State failed to satisfy the corpus delicti rule. 

         What is Langevin's remedy, now that we have ruled that the State failed to 
        satisfy the requirements of the corpus delicti rule? 

                 As we explained earlier in this opinion, and as we explained at some length 

in Dodds v. State, there are two schools of judicial thought regarding corpus delicti. 

Some courts follow the rule that corpus delicti is the evidentiary foundation that must be 

laid   if   the   government   wishes   to   introduce   evidence   of   a   defendant's   out-of-court 

confession.   Other courts follow the rule that corpus delicti is an implicit element of the 

government's   proof   whenever   the   government   relies   on   a   defendant's   out-of-court 

confession. 

                 We have concluded that Alaska is an "evidentiary foundation" jurisdiction. 

Thus,     in  Alaska,   the  corpus     delicti   rule  bars  the  government      from    introducing     a 

defendant's   out-of-court   confession   (for   the   truth   of   the   matter   asserted)   unless   the 

government presents sufficient corroborating evidence to establish the trustworthiness 

of the confession with regard to whether the confessed crime was actually committed. 

                 In Langevin's case, the defense attorney did not object to the introduction 

of Langevin's confession at the time it was offered into evidence.                 Rather, the defense 

attorney waited to make the corpus delicti objection until the prosecutor announced that 

the State was resting its case-in-chief.  We do not, however, believe that the timing of the 

defense attorney's objection affected the parties' rights. 

                 As Professor LaFave explains, the traditional form of the corpus delicti rule 

"may have barred the government from introducing the defendant's confession until it 

had first proved the corpus delicti", but "it is now generally accepted that a trial judge 

                                                  -  12 -                                             2311
 

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has the discretion to [allow] 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."  Substantive Criminal 

Law, § 1.4(b), Vol. 1, p. 31. 

                 Thus, if Langevin's attorney had raised the corpus delicti objection at the 

first   opportunity   -   in   other   words,   if   the   defense   attorney   had   objected   when   the 

prosecutor      offered    Langevin's      confession     -    the  trial  judge   would     have   had   the 

discretion to let the prosecutor introduce the challenged evidence, with the understanding 

that the prosecutor had to satisfy the corpus delicti rule by the end of the State's case-in­ 

chief. 

                 Instead, Langevin's attorney waited until the close of the State's case-in­ 

chief to raise the issue of corpus delicti.          At that time, the defense attorney argued that 

the State had failed to adequately corroborate Langevin's confession, and the defense 

attorney asked the trial judge to enter a judgement of acquittal. 

                 Had the trial judge sustained the defense attorney's corpus delicti objection 

at   that   time   (in   other   words,   had   the   trial   judge   ruled   that   the   State's   corroborating 

evidence was insufficient to establish the required evidentiary foundation for Langevin's 

confession), the judge would have had the discretion to allow the State to re-open its case 

to cure this deficiency.       See LaFave, Substantive Criminal Law, § 1.4(b), Vol. 1, p. 31, 

and Wayne R. LaFave, Jerold H. Israel, and Nancy J. King, Criminal Procedure (3rd ed. 

2007), § 24.6(b), Vol. 6, pp. 442-43.            But this question never arose, because the trial 

judge ruled that the State  had satisfied the corpus delicti rule. 

                 As we explained in the preceding section of this opinion, we agree with 

Langevin that the State failed to satisfy the corpus delicti requirement in Langevin's 

case.  However, this does not mean that Langevin is entitled to a judgement of acquittal. 

                                                   -  13 -                                              2311
 

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                We     acknowledge       that  the  majority    position    in  this  country   is  that  a 

defendant   is   entitled   to   an   acquittal   if   the   government   introduces   evidence   of   the 

defendant's   out-of-court   confession   but   fails   to   satisfy   the  corpus   delicti   rule.  See 

LaFave,     Substantive     Criminal     Law,    §  1.8(i),  Vol.   1,  pp.  97-98.    But    it  must   be 

remembered that most American jurisdictions follow the "implicit element" approach to 

corpus delicti.     LaFave, § 1.4(b), Vol. 1, p. 31; Dodds, 997 P.2d at 540.                 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 judgement of acquittal if the government fails to offer 

proof of each element of the crime. 

                But under Alaska's "evidentiary foundation" approach to corpus delicti, the 

corroborating evidence is not an element of the State's proof; rather, it is the foundation 

that must be laid to make the defendant's confession admissible in evidence. 

                The defendant may raise a corpus delicti objection when the government 

first offers the confession in evidence, or the defendant may wait until the government 

concludes its case-in-chief.        But either way, the objection is of the same nature.                A 

corpus delicti objection is not the same as an assertion that the government's evidence 

is legally insufficient to support a verdict in the government's favor.               Rather, a corpus 

delicti objection is an assertion that the government should not be allowed, or should not 

have been allowed, to introduce the defendant's confession as part of its case. 

                Because a corpus delicti objection does not challenge the sufficiency of the 

State's proof, but rather the admissibility of a portion of the State's evidence, when a 

defendant loses a corpus delicti objection at trial and then successfully pursues the issue 

on    appeal,   the  defendant's     remedy     is  not  a  judgement     of  acquittal.   Instead,     the 

defendant's remedy is a new trial. As the United States Supreme Court held in Lockhart 

v. Nelson, 488 U.S. 33, 40-42; 109 S.Ct. 285, 290-92; 102 L.Ed.2d 265 (1988), and as 

this Court held in Houston-Hult v. State, 843 P.2d 1262, 1265 n. 2 (Alaska App. 1992), 

                                                  -  14 -                                            2311
 

----------------------- Page 15-----------------------

a   defendant   who   successfully   contends   on   appeal   that   the   trial   judge   should   have 

excluded      a   portion    of  the   government's       evidence     can   not   then   argue    that   the 

government's remaining evidence was insufficient to withstand a motion for judgement 

of   acquittal.   Rather,   the   sufficiency   of   the   evidence   is   assessed   in   light   of  all   the 

evidence presented at the defendant's trial - even the evidence that was wrongfully 

admitted. See LaFave, Israel, and King, Criminal Procedure, § 25.4(c), Vol. 6, pp. 651­ 

52. 

                 As we noted earlier, had the trial judge sustained Langevin's corpus delicti 

objection, the judge would have had the discretion to allow the State to re-open its case 

to cure this deficiency.  And we can not know what additional evidence the State might 

have presented to corroborate Langevin's confession if the trial judge had ruled that the 

State's existing evidence was not sufficient for this purpose. See Houston-Hult, 843 P.2d 

at 1265 n. 2. 

                 It is, of course, possible that a defense attorney might simultaneously raise 

a corpus delicti objection and a motion for a judgement of acquittal.                   In other words, a 

defense attorney might argue that the government had failed to sufficiently corroborate 

the defendant's confession to satisfy the requirement of corpus delicti and, at the same 

time, argue that the government's evidence taken as a whole (i.e., even including the 

defendant's confession) was insufficient to justify a guilty verdict. 

                 But although Langevin's attorney referred to his motion as a request for a 

judgement of acquittal, it is clear that the defense attorney was  not asserting that the 

State's     evidence     was   insufficient    even    if  Langevin's     confession     was    taken    into 

consideration.      Rather, Langevin's attorney was arguing that the State should not have 

been allowed to introduce Langevin's confession - and that, without the confession, the 

State's evidence was insufficient to support a guilty verdict. 

                                                   -  15 -                                             2311
 

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               This   latter  portion  of  the  defense   attorney's   argument    was   legally 

erroneous. Here, it is obvious that when Langevin's confession is taken into account, the 

State's evidence was sufficient to support a conviction.   Even though we have held that 

the trial judge should have sustained Langevin's corpus delicti objection to the admission 

of the confession, it is irrelevant (for judgement of acquittal purposes) that the State's 

evidence would have been insufficient without Langevin's confession. 

       Conclusion 

               The judgement of the district court is REVERSED.  Langevin is entitled to 

a new trial. 

                                            -  16 -                                       2311
 
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