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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.
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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:
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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.
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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).
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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.
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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.
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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.
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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.
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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.
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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
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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.
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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
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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.
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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),
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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.
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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.
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