State v. Shook

Justice WEBB

concurring.

I concur in the result reached by the majority. I write this concurring opinion because I do not believe we have properly treated the issue of proof necessary to make a confession admissible. I believe this Court went off the track in State v. Brown, 308 N.C. 181 , 301 S.E.2d 89 (1983), in holding that a confession should not be admitted unless the State offers proof aliunde the confession that the crime was committed. It is time to return to the rule which was in effect before Brown .

I believe that prior to Brown the rule for making confessions admissible was well established in the following cases: State v. Green, 295 N.C. 244 , 244 S.E.2d 369 (1978); State v. Thompson, 287 N.C. 303 , 214 S.E.2d 742 , death sentence vacated, 428 U.S. 908 , 49 L.Ed.2d 1213 (1976); State v. Jenerett, 281 N.C. 81 , 187 S.E.2d 735 (1972); State v. Whittemore, 255 N.C. 583 , 122 S.E.2d 396 (1961), and State v. Macon, 6 N.C. App. 245 , 170 S.E.2d 144 (1969), affd, 276 N.C. 466 , 173 S.E.2d 286 (1970). In Thompson, Chief Justice Branch stated the rule as follows:

Defendant correctly contends that his conviction cannot be sustained upon a naked extrajudicial confession. However, it is equally well settled that if the State offers into evidence sufficient extrinsic corroborative circumstances as will, when taken in connection with an accused’s confession, show that the crime was committed and that the accused was the perpetrator, the case should be submitted to the jury.

State v. Thompson, 287 N.C. at 324 , 214 S.E.2d at 755 . The defendant in Thompson had been convicted of murder. The evidence which Chief Justice Branch held corroborated the defendant’s confession was that the defendant was found in an automobile similar to the one belonging to the deceased, the defendant had a large sum *85 of money, the defendant had an opportunity to steal the pistol which was shown to have fired the fatal bullets, the defendant had in his possession a pistol which was the same color as the one which fired the bullets into the deceased’s body, and his girlfriend saw some empty shells in the possession of the defendant. This was not evidence aliunde the confession sufficient to prove the murder had been committed.

In Whittemore, the defendant was tried for a crime against nature and carnal knowledge of a virtuous girl. A penetration is necessary for a person to be convicted of either crime. The State’s witness did not testify that there was a penetration so that there was not proof that a crime had been committed. We said this was not enough to convict the defendant of either crime. The defendant confessed, however, and we held that the testimony of the State’s witness and the confession was enough to sustain the conviction. Justice Rodman, writing for the Court, said:

“A conviction cannot be had on the extrajudicial confession of the defendant, unless corroborated by proof aliunde of the corpus delicti. Full, direct, and positive evidence, however, of the corpus delicti is not indispensable. A confession will be sufficient if there be such extrinsic corroborative circumstances, as will, when taken in connection with the confession, establish the prisoner’s guilt in the minds of the jury beyond a reasonable doubt.”

State v. Whittemore, 255 N.C. at 589 , 122 S.E.2d at 401 (quoting Masse v. United States, 210 F.2d 418, 420 (5th Cir. 1954)).

Justice Dan Moore in Jenerett quoted Whittemore with approval. In Macon, the defendant was convicted of second degree murder. The State’s evidence showed that the skeleton of the victim was found with a bullet hole through her skull. This evidence was held to be sufficient proof of the corpus delicti to make the defendant’s confession admissible. We affirmed this holding. The fact that there was a bullet hole through the victim’s skull did not prove she was murdered. It could have just as easily been inferred that it was an accident or that it was a suicide. I believe Macon contains a square holding that it is not necessary to prove a crime has been committed in order to make a confession admissible. In that case Judge Parker, writing for the Court of Appeals said:

*86 To establish a prima facie showing of the corpus delicti the prosecution need not eliminate all inferences tending to show a non-criminal cause of death. “Rather, a foundation (for the introduction of a confession) may be laid by the introduction of evidence which creates a reasonable inference that the death could have been caused by a criminal agency . . . even in the presence of an equally plausible non-criminal explanation of the event (citing cases).”

State v. Macon, 6 N.C. App. at 253 , 170 S.E.2d at 149 .

I have discussed these cases at some length in order to show that prior to Brown we had a simple and good rule on the admissibility of confessions. That rule was that if there was evidence independent of the confession which, taken with the confession showed a crime had been committed and that the defendant did it, the confession should be admitted. There was no reason to change this rule as was done in Brown . Confessions can be good evidence and should not be restricted by an arbitrary rule.

Following Brown the problems caused by that case began to surface. In State v. Franklin, 308 N.C. 682 , 304 S.E.2d 579 (1983), no problem arose because the commission of the crime could be proved independently of the confession. In State v. Parker, 315 N.C. 222 , 337 S.E.2d 487 (1985), we changed the rule in non-capital cases and said, “it is no longer necessary that there be independent proof tending to establish the corpus delicti of the crime charged if the accused’s confession is supported by substantial independent evidence tending to establish its trustworthiness, including facts that tend to show the defendant had the opportunity to commit the crime.” Id. at 236 , 337 S.E.2d at 495 . I believe this is a very difficult test to apply.

In State v. Trexler, 316 N.C. 528 , 342 S.E.2d 878 (1986), the defendant was convicted of driving while impaired. The evidence was that a Mr. Hall was awakened at 2:30 a.m. by a loud noise outside his home. He looked out his window and saw an automobile lying upside down in the road. He also saw someone leaving the vehicle. A highway patrolman came to the scene and the defendant told him he had been driving the automobile. The chemical analysis revealed that defendant’s blood alcohol content was .14. The Court of Appeals held that Brown required the case to be dismissed because there was not evidence aliunde the confession that there had been a crime committed.

*87 We reversed the Court of Appeals in Trexler . In doing so I believe we demonstrated how difficult it is to apply the rule as now stated. At one point we said:

It is well established in this jurisdiction that a naked, uncorroborated, extrajudicial confession is not sufficient to support a criminal conviction. Our application of the corpus delicti rule before our decision in State v. Parker, 315 N.C. 222 , 337 S.E.2d 487 (1985), required that there be corroborative evidence, independent of defendant’s confession, which tended to prove the commission of the charged crime.

State v. Trexler, 316 N.C. at 531 , 342 S.E.2d at 880 .

Later in the opinion in Trexler we said that the pr e-Parker rule has not been abandoned but that Parker expanded the type of corroboration which may be sufficient. We said:

The pr e-Parker rule is still fully applicable in cases in which there is some evidence aliunde the confession which, when considered with the confession, will tend to support a finding that the crime charged occurred. The rule does not require that the evidence aliunde the confession prove any element of the crime. The corpus delicti rule only requires evidence aliunde the confession which, when considered with the confession, supports the confession and permits a reasonable inference that the crime occurred. 30 Am. Jur. 2d Evidence § 1142 (1967). The independent evidence must touch or be concerned with the corpus delicti. State v. Parker, 315 N.C. 222 , 337 S.E.2d 487 .

State v. Trexler, 316 N.C. at 532 , 342 S.E.2d at 880-81 . If this be the test we have returned to the rule of Thompson with the added requirement of Parker that the independent evidence be concerned with the corpus delicti. We apparently used this revised Thompson test in Trexler when we said, “[w]e need not rely upon the Parker rule for here there is evidence aliunde defendant’s confession touching on the corpus delicti which when considered with other evidence tends to support a finding that the charged crime occurred.” State v. Trexler, 316 N.C. at 533 , 342 S.E.2d at 881 . Although we used the pr e-Brown test in Trexler , we said we were using the Brown test.

In State v. Johnson, 317 N.C. 343 , 346 S.E.2d 596 (1986), we again faced the question of the sufficiency of corroborating evidence to support a confession. The defendant was convicted of first degree *88 murder, kidnapping and rape. In that case the victim’s body was found on a road several miles from her automobile. There were fifty-five separate stab wounds in the body. A forensic odontologist testified that the defendant’s teeth matched bite marks on the victim’s breast. There was sperm in the victim’s vagina. The defendant contended on appeal that his confession to kidnapping and rape did not support a conviction as to either crime because there was not proof of a corpus delicti in either case. We recognized Brown as being the controlling authority, but then said, “[t]he pre Parker rule is still fully applicable in cases in which there is some evidence aliunde the confession which, when considered with the confession, will tend to support a finding that the crime charged occurred.” State v. Johnson, 317 N.C. at 373 , 346 S.E.2d at 612 (quoting State v. Trexler, 316 N.C. 528, 532 , 342 S.E.2d 878, 880 (1986)). As we have seen, this is the Thompson rule and not the Brown rule.

The evidence in Johnson which we said established the corpus delicti for the kidnapping charge was that the victim’s body was found miles from her home and her car, that bloodstains were found on the defendant’s car and clothing and bruises were found on her face. The evidence which we said established the corpus delicti for the rape charge was the stab wounds, a bruise on the victim’s face and bite marks on her left breast and thigh, bloodstain patterns in the defendant’s car, the victim’s torn clothes which left her body exposed from her neck to her ankles and semen in her vagina. If the Thompson test is used this evidence should be sufficient to establish the corpus delicti for both charges. If the Brown test is used it is more difficult and I do not believe it can be done on the kidnapping charge.

I have discussed the cases at some length because I believe they demonstrate that Brown has given us a rule which is confusing and difficult to apply. Some of our cases treat confessions as if they should be suspect evidence and subject to artificial rules before admission. I believe the opposite is true. Unless the evidence shows a confession is coerced I do not see how we could have better evidence. I would have a simple rule, such as the one stated in Thompson.

It is for these reasons that I concur in the result.