State v. DowState v. Dow
- Reporters:
- ,
- Before:
- C. Johnson, Barbara A. Madsen, Susan Owens, Mary E. Fairhurst, Gerry L. Alexander, Richard B. Sanders, Debra L. Stephens, Tom Chambers, J.M. Johnson (en banc)
C. JOHNSON, J.
¶ 1 This case involves a challenge to the application of
FACTS
¶ 2 The Cowlitz County prosecutor charged Keith Ian Dow with one count of first degree child molestation. At the time of the alleged offense, the child was three. Though the child was four by the time of the trial, the court found and the State conceded that the child was incompetent to testify and that her statements to others about the alleged offense were inadmissible. No persons other than Dow and the child were present at the time of the alleged offense.
¶ 3 During a recorded police interview, Dow made statements in which he recounted the events surrounding the alleged offense. The trial court found these statements to be exculpatory and not an admission. The State sought to introduce Dow‘s statements as substantive evidence that he committed the crime charged. Dow moved to exclude these statements, arguing they were inadmissible for lack of corpus delicti.1
¶ 4 The State conceded that, without the victim‘s statement, it lacked any evidence independent of Dow‘s statement to establish the corpus delicti. But the State argued Dow‘s statements were admissible under
¶ 5 In findings of fact (FF) 3, the trial court stated: “The court had reviewed the evidence available to the state, which includes the transcript of an interview ... with the defendant, which the state seeks to admit into evidence against the defendant. The state concedes there is no other available evidence against the defendant in this case.” Clerk‘s Papers at 5-6. In FF 6, after it reviewed the transcript, the trial court found the contents of the defendant‘s statement
¶ 6 In its written conclusions of law, the trial court found that, notwithstanding the statute, the State must at least satisfy the corroboration standard adopted in Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954) (requiring corroborative evidence independent of the defendant‘s confession to support the conviction). In doing so, the trial court reasoned the Opper standard constituted a federal constitutional minimum due process standard. In dismissing the charge, the trial court ruled that Dow‘s statement was inadmissible because
¶ 7 The Court of Appeals reversed in a split, published decision. State v. Dow, 142 Wash.App. 971, 176 P.3d 597 (2008). We granted review and now reverse.
ISSUES
¶ 8 Is
STANDARD OF REVIEW
¶ 9 Generally, we review a trial court‘s decision of whether evidence is admissible for abuse of discretion. State v. Wade, 138 Wash.2d 460, 463-64, 979 P.2d 850 (1999). But determining the admissibility of a defendant‘s statement under
ANALYSIS
¶ 10 The corpus delicti doctrine generally is a principle that tests the sufficiency or adequacy of evidence, other than a defendant‘s confession, to corroborate the confession. State v. Brockob, 159 Wash.2d 311, 327-28, 150 P.3d 59 (2006). The purpose of the rule is to ensure that other evidence supports the defendant‘s statement and satisfies the elements of the crime. Where no other evidence exists to support the confession, a conviction cannot be supported solely by a confession. The purpose of the corpus delicti rule is to prevent defendants from being unjustly convicted based on confessions alone. City of Bremerton v. Corbett, 106 Wash.2d 569, 576, 723 P.2d 1135 (1986). Historically, courts have grounded the rule in judicial mistrust of confessions.
¶ 11 Here, the parties first dispute whether the corpus delicti rule is constitutionally mandated. We have previously recognized that Washington‘s corpus delicti rule, particularly the requirement that the State present independent, corroborative evidence that the offense occurred, is judicially created and not constitutionally mandated. In Corbett, we noted that “[u]nlike the principles enunciated in Miranda v. Arizona, [384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)]... the corpus delicti rule does not have a constitutional source; it is traceable to English law and was early established in America.” Corbett, 106 Wash.2d at 576, 723 P.2d 1135 (emphasis added). Our reasoning in Corbett supports the State‘s contention that Washington‘s corpus delicti rule is not a Washington State constitutional standard, but it does not resolve whether the federal constitution mandates the corpus delicti rule.
¶ 12 In Opper, the United States Supreme Court held that while the State is not required to establish corpus delicti independently of a defendant‘s statement, it is required to show the defendant‘s statement is reliable before it can be admitted. 348 U.S. at 93-94, 75 S.Ct. 158. The Opper Court recognized the corroboration requirement was based on an expansion of the common law and general concepts of justice. Put otherwise, the federal corroboration rule is judicially created, not constitutionally mandated. Indeed, federal case law weighs heavily against finding that the federal corroboration rule is constitutionally based. See, e.g., United States v. Lopez-Alvarez, 970 F.2d 583 (9th Cir.), cert. denied, 506 U.S. 989, 113 S.Ct. 504, 121 L.Ed.2d 440 (1992).
¶ 14 In 2003, the legislature modified the corpus delicti rule when it enacted
¶ 15 The corroboration rule enunciated in Opper signaled a departure from the previously more stringent federal corpus delicti rule. Generally, the corpus delicti rule prevents a defendant from being convicted based on his or her confession alone and requires independent evidence sufficient to establish every element of the crime charged. The Opper court stated the following when it enunciated the federal corroboration rule:
[W]e think the better rule to be that the corroborative evidence need not be sufficient, independent of the statements, to establish the corpus delicti. It is necessary, therefore, to require the Government to introduce substantial independent evidence which would tend to establish the trustworthiness of the statement. Thus, the independent evidence serves a dual function. It tends to make the admission reliable, thus corroborating it while also establishing independently the other necessary elements of the offense.
348 U.S. at 93, 75 S.Ct. 158 (most emphasis added). In other words, the Opper corroboration rule creates an alternative means to prove the corpus delicti. It does not, however, permit a defendant‘s confession to be the sole evidence used to support a conviction. More importantly, the corpus delicti rule is both a rule of admissibility and a rule of sufficiency.
¶ 16 Dow, argues the legislature codified the “trustworthiness” standard from Opper when it enacted
(1) In criminal and juvenile offense proceedings where independent proof of the corpus delicti is absent, and the alleged victim of the crime is dead or incompetent to testify, a lawfully obtained and otherwise admissible confession, admission, or other statement of the defendant shall be admissible into evidence if there is substantial independent evidence that would tend to establish the trustworthiness of the confession, admission, or other statement of the defendant.
(2) In determining whether there is substantial independent evidence that the confession, admission, or other statement of the defendant is trustworthy, the court shall consider, but is not limited to:
(a) Whether there is any evidence corroborating or contradicting the facts set out in the statement, including the elements of the offense;
(b) The character of the witness reporting the statement and the number of witnesses to the statement;
(c) Whether a record of the statement was made and the timing of the making of the record in relation to the making of the statement; and/or
(d) The relationship between the witness and the defendant.
(3) Where the court finds that the confession, admission, or other statement of the defendant is sufficiently trustworthy to be admitted, the court shall issue a written order setting forth the rationale for admission. (4) Nothing in this section may be construed to prevent the defendant from arguing to the jury or judge in a bench trial that the statement is not trustworthy or that the evidence is otherwise insufficient to convict.
(Emphasis added.)
¶ 17 Judicially, we have rejected the Opper rule. See State v. Aten, 130 Wash.2d 640, 663, 927 P.2d 210 (1996). In Aten, we noted that an increasing number of state courts have followed the Opper rule and that we are not among them. In Aten, we described the Opper rule as a more relaxed standard because it requires that the independent corroborating evidence must only tend to establish the trustworthiness of the confession. Instead of adopting Opper‘s corroboration rule, we held:
The confession of a person charged with the commission of a crime is not sufficient to establish the corpus delicti, but if there is independent proof thereof, such confession may then be considered in connection therewith and the corpus delicti established by a combination of the independent proof and the confession.
Aten, 130 Wash.2d at 656, 927 P.2d 210 (emphasis added) (footnote omitted). After the 2003 enactment of
¶ 18 In contrast to the Opper rule and the rule we enunciated in Aten, the Court of Appeals correctly pointed out that
¶ 19 The statute recognizes as much. Subsection (4) provides that “[n]othing in this section may be construed to prevent the defendant from arguing to the jury or judge in a bench trial that the statement is not trustworthy or that the evidence is otherwise insufficient to convict.”
¶ 20 Here, the State argues that Dow‘s statement was admissible because the trial court found the statement trustworthy based on the nonexclusive factors set out in
¶ 21 The State concedes it does not have any evidence corroborating or contradicting the facts set out in the statement, including any evidence related to the elements of the offense. See Br. in Resp. to Pet. for Review at 13. The State also represented to the trial court that it lacked any direct evidence that sexual contact actually occurred.2 Dow, 142 Wash.App. at 987, 176 P.3d 597 (Houghton, C.J., dissenting). The only evidence the State purported to have is Dow‘s statement, which is insufficient under any standard. The statement “I did not commit the crime” cannot support a conviction for the crime without something more.
¶ 22 Considering the State‘s concessions on these points, the Court of Appeals noted that the trial court could have dismissed the charge for insufficient evidence under State v. Knapstad, 107 Wash.2d 346, 729 P.2d 48 (1986). Such dismissal would have been based on FF 3 (the only evidence against Dow was his statement) and FF 6 (Dow‘s statement was ultimately exculpatory rather than sufficient to support a conviction).3 Without any evidence of guilt, the State has no evidence, much less sufficient evidence, to meet its burden of proving guilt beyond a reasonable doubt. The Court of Appeals held this issue was not before it and remanded Dow‘s case to the trial court, noting that Dow would be permitted to reassert his previously filed Knapstad motion, on which the trial court did not rule. We agree with the dissenting opinion from the Court of Appeals that no reason exists to remand this case to the trial court given the unchallenged findings and the State‘s concession that no other material evidence exists. The record is sufficient to resolve the Knapstad issue, which Dow presented on appeal.
CONCLUSION
¶ 23 We reverse the Court of Appeals decision to remand to the trial court and affirm the trial court‘s dismissal of the State‘s case.
WE CONCUR: BARBARA A. MADSEN, C.J., SUSAN OWENS, MARY E. FAIRHURST, GERRY L. ALEXANDER, RICHARD B. SANDERS, DEBRA L. STEPHENS, and TOM CHAMBERS, JJ.
J.M. JOHNSON, J. (concurring).
¶ 24 I concur in the majority‘s judgment only because no shred of evidence besides the defendant‘s confession corroborates the abhorrent crime of which he has been accused. I write separately, however, to emphasize the heightened need for substantiating evidence in sexual assault cases involving very young victims who are likely to be found incompetent to testify.