Green v. State

¶1Dissenting Opinion

¶2If defendant’s extrajudicial admission is eliminated from the evidence it contains no testimony which expressly states what act or whose act, caused the car to strike Mr. Cambridge, nor is there any evidence from which the identity of the act or of the actor can reasonably be inferred. All that the independent evidence shows is that (with Mr. Harris behind the wheel) the car drove onto the berm and stopped, defendant got in, locked the door, scooted over to the center of the car, the car lurched forward and struck Mr. Cambridge, and Mr. Harris reapplied the brake.1 Defendant saw Cambridge in front of the car but there is nothing to indicate whether the driver did. There is nothing to indicate whether the car lurched forward because the brake was released, or because the gear lever was moved from “park” or “neutral” to “drive”, or because pressure was applied to the accelerator, or because a clutch was released, or because of any of a number of other possible causes (depending partly on whether the car was equipped with an automatic or a standard transmission). In short, there is nothing but defendant’s extrajudicial admission (that he had tried to run over Cambridge with the car) from which it can be reasonably inferred that the forward lurch of the car was the product of a criminal act or even an intentional act. Which is to say that there is no independent evidence that the injury to Cambridge was a battery someone had committed. Had there been such independent evidence which, however, did not identify the actor who committed *83the battery, defendant’s admission would have been sufficient to supply that omission. In other words, an extrajudicial confession or omission can be the sole proof of who committed the crime, but not the sole proof that a crime was committed. Since nothing but defendant’s admission supplies the otherwise missing evidence of criminality as the cause of the injury, the judgment should be reversed.

¶3At the outset, it must be understood that the distinction between an extrajudicial admission and an extrajudicial confession has no bearing on the thesis of this dissent. A succinct explanation found in an annotation, 45 A.L.R.2d 1316, 1323, n. 16, follows:

“An admission, as distinguished from a confession, does not cover all the elements of the crime charged. . . . Hence an admission does not support a conviction, even where all the facts stated in the admission are corroborated. What the rule that an uncorroborated admission does not support a conviction really means is that the admission without corroboration is not sufficient evidence of the facts admitted.”

¶4That annotation cites cases from fifeeen jurisdictions in support of its statement that

“As a general proposition, an accused’s admission of incriminating facts not amounting to a confession, if uncorroborated by any other evidence, is not sufficient to sustain a conviction.”

¶5Among those cases is Opper v. United States (1954), 348 U.S. 84, 99 L.Ed. 101, 75 S.Ct. 158, 45 A.L.R.2d 1308. Though it lays down a rule for corroboration which is quite different from that which Indiana and most jurisdictions follow, it contains a good statement of the reason for treating extrajudicial admissions2 as confessions with respect to corroboration and proof of the corpus delicti:

*84“We think that an accused’s admissions of essential facts or elements of the crime, subsequent to the crime, are of the same character as confessions and that corroboration should be required. See 1 Greenleaf, Evidence (16th ed) §216; Smith v. United States, 348 U.S. 147, 99 L.Ed. 192, 75 S.Ct. 194.

“The need for corroboration extends beyond complete and conscious admission of guilt — a strict confession. Facts admitted that are immaterial as to guilt or innocence need no discussion. Rut statements of the accused out of court that show essential elements of the crime, here payment of money, necessary to supplement an otherwise inadequate basis for a verdict of conviction, stand differently. Such admissions have the same possibilities for error as confessions. They, too, must be corroborated. See Wilson v. United States, 162 U.S. 613, 621, 40 L.Ed. 1090, 1095, 16 S.Ct. 895.”

¶6Opperalso contains an interesting analysis of the three different rules of corroboration then followed in the various federal circuits.

“One line of cases follows the rule set out in Daeche v. United States (CA2d N.Y.) 250 F. 566, that the corroborative evidence is sufficient if it touches the corpus delicti ‘in the sense of the injury against whose occurrence the law is directed,’ 250 F. at 571, and is of a type which goes to fortify the truthfulness of the confession. Some cases would seem only to require the latter half of the Daeche rule; that is, proof of any corroborating circumstances is adequate which goes to fortify the truth of the confession or tends to prove facts embraced in the confession. There is no necessity that such proof touch the corpus delicti at all, though, of course, the facts of the admission plus the corroborating evidence must establish all elements of the crime.

“Other decisions tend to follow the rule enunciated in Forte v. United States, 68 App.D.C. 111, 94 F.2d 236, 240, 244, 127 A.L.R. 1120, that the corroboration must consist of substantial evidence, independent of the accused’s extrajudicial statements, which tends to establish the whole of the corpus delicti.” (45 A.L.R.2d at 1314, notes omitted.)

¶7The rule adopted for the federal courts by Opperis:

“However, we 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, *85therefore, 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. Smith v. United States, 348 U.S. 147, 99 L.Ed. 192, 75 S.Ct. 194. It is sufficient if the corroboration supports the essential facts admitted sufficiently to justify a jury inference of their truth. Those facts plus the other evidence besides the admission must, of course, be sufficient to find guilt beyond a reasonable doubt.”

¶8In Jones v. State3(1969), 253 Ind. 235, 248, 252 N.E.2d 572, Chief Justice Arterburn’s majority opinion discusses the Opper rule as set forth in Landsdown v. United States (5th Cir., 1965), 348 F.2d 405, and rejects it with these words:

“We are not inclined however at this time to go as far as the Federal courts have in their lenient interpretation of what constitutes sufficient corroborating evidence to establish the admissibility of a confession. The majority rule, as we noted previously from Brown v. State (1958), 239 Ind. 184, 154 N.E.2d 720, seems to us to be the better and more rational principle to follow. It does not mean that a prima facie case with all of the elements of the crime charged has to be proved.”

¶9In BrownChief Justice Arterburn had said:

“The confession of the appellant, if competent evidence, amply sustains the verdict; but because of the extremity of the penalty inflicted we are constrained to review the evidence particularly as to whether or not the extrajudicial confession is adequately corroborated by independent evidence. The rule requiring proof of the corpus delicti of a crime has its origin and basis in the hesitancy of the law to accept without adequate corroboration, the confession of a defendant (extrajudicial) unless it be one made in open court — as a plea of guilty. Corpus delicti has been defined as ‘The body of a crime ... In a derivative sense, the substance or foundation of a crime; the substantial fact that *86a crime has been committed.’ Black’s Law Dictionary, 4th Ed., p. 413.

Tn Indiana the independent evidence alone need not be sufficient to establish the corpus delicti beyond a reasonable doubt, but there must be some evidence of probative value aside from the confession to prove that the crime charged was committed.’ Parker v. State (1949), 228 Ind. 1, 7, 88 N.E.2d 556, 89 N.E.2d 442.

“A dead body alone is not proof of the corpus delicti in a homicide case; but an identified dead body with marks of violence thereon or surrounding circumstances that would indicate the deceased did not die from natural causes establishes prima facie that a homicide has been committed and the corpus delicti. Wahl v. State (1951), 229 Ind. 521, 98 N.E.2d 671; Hunt v. State (1939), 216 Ind. 171, 23 N.E.2d 681; Commonwealth v. Lettrich (1943), 346 Pa. 497, 31 A.2d 155; McVeigh v. State, 205 Ga. 326, 53 S.E.2d 462; Osborn v. State, 86 Okla. Crim. 259, 194 Pac. 2d 176.

“Likewise, the corpus delicti in an arson case is not established by the burning of a building alone, but additional independent evidence is necessary to show it was intentionally set afire in violation of the law. Simmons v. State (1955), 234 Ind. 489, 129 N.E.2d 121.

“In other words, the independent evidence must be of such a character that reasonable inferences may be drawn to support a conclusion that a crime of the nature and character charged has been committed by someone.” (239 Ind. at 190.)

¶10Jones v. State, supra, 253 Ind. at 249, stated the Indiana rule on sufficiency of the evidence to show corpus delicti thus:

“From an extensive review of the authorities as to the quantum of evidence necessary to prove the corpus delicti in this state, we hold that it is not necessary to make out a prima facie case as to each element of the crime charged nor is it necessary to prove each element of the crime charged beyond a reasonable doubt before a confession is admissible. We further hold that the traditional definition of corpus delicti, as heretofore quoted from. Black’s Dictionary, namely, that the body (material substance) upon which a crime has been committed, i.e., the corpse of a murdered man or the charred remains of a burnt house, for example, plus independent evidence from xohich an inference may be drawn that a crime ivas committed in connection therewith, is sufficient to show the corpus delicti. *87Our rule is stricter than that held by the Federal courts and some state courts, as shown above, since in this state we require evidence of criminality in connection with the incident.” (My emphasis.)

¶11The Indiana rule that confessions and admissions must be corroborated by independent evidence sufficient to make prima facie proof of the corpus delicti is stated in Jonesin terms of admissibility because that was the procedural manner in which the question arose. Perhaps in most cases the issue originates in that same manner: An objection is made when a written confession or admission is offered into evidence or when a question is asked which seeks to elicit testimony of an oral admission or confession. That, however, is not the only manner in which the issue can arise. Parker v. State (1949), 228 Ind. 1, 88 N.E.2d 556, 89 N.E.2d 442, is one illustration. The concluding portion of the initial opinion stated:

“We hold that there was no evidence of the corpus delicti in this case of any probative force, except the confessions and admissions of the accused, and, therefore, the evidence was insufficient and the case must be reversed.

“In view of our conclusion, it is not necessary to determine whether there was error in admitting the confession, or in other respects urged by appellant.” (Id. at 11.)

¶12In a clarifying opinion overruling the State’s petition for rehearing, the court said:

“We said that an extrajudicial confession will not be admitted in evidence and a conviction will not be upheld until and unless the corpus delicti has been established by clear proof, independent of the confession. . . .” (Id. at 11.) “The literal meaning of the language which we used may, out of context, seem to be that the independent, corroborative evidence of the corpus delicti must precede the confession. We did not have before us, however, the question of order of proof; %oe were considering the necessity for such proof to uphold a conviction. . . . (Id. at 12. My emphasis.)

¶13Another case in point is Gaines v. State (1921), 191 Ind. 262, 132 N.E. 580, is one in which it appears that there was no objection to the testimony of the several witnesses who *88testified to defendant’s oral confession. The issue arose on defendant’s motion for new trial in which “it is contended by-appellant that the verdict of the jury is not sustained by sufficient evidence and is contrary to law.” (Id. at 264.) In reversing the conviction the court said:

“If the ‘confession’ of the appellant is eliminated from the evidence there is no evidence at all tending to show that any burglary was committed. The verdict is therefore not supported by the evidence, in one of the essential elements of the offense and is not according to law.” (Id. at 269).

¶14In the case at bar, if the admission of the defendant is eliminated from the evidence there is some evidence tending to show that an assault and battery was committed. There is evidence of an injury; evidence that an automobile struck a man. That is sufficient prima fade proof of the first element of the corpus delicti: Injury. But there is no evidence of the second element: That someone is criminally responsible for the injury. There is NO evidence of what caused the car to strike the man.

¶15There is an almost perfect analogy between arson and assault and battery by automobile. In both Williams v. State (1930), 90 Ind. App. 667, 169 N.E. 698, and Simmons v. State (1955), 234 Ind. 489, 129 N.E.2d 121, the only evidence that arson had been committed, exclusive of defendant’s extrajudicial confession, was that property had burned. Both convictions were reversed. In Simmonsthe court said:

“In arson, the corpus delicti is not proved by mere proof that property burned. ‘The law implies that the fire was the result of accident or some providential cause, rather than a criminal design, unless the evidence proves otherwise. Phillips v. State (1859), 29 Ga. 105; Stallings v. State (1872), 47 Ga. 572; State v. Carrol (1892), 85 Iowa 1, 51 N.W. 1159.’ Williams v. State (1930), 90 Ind. App. 667, 677, 169 N.E. 698.” (Id. at 493.)

¶16While it is probable that no case has ever held that the law implies that the unexplained forward lurch of a standing *89automobile is presumed to be accidental, certainly no one has ever held that it is presumed to be criminal. In Shorter v. State (1954), 234 Ind. 1, 9, 122 N.E.2d 847, the court said: “The mere probability that appellant may have driven his automobile against that of another heedlessly, and with reckless disregard for the safety, property and rights of others, will not sustain an inference upon which such possibility can be established as a fact.”

¶17That the forward lurch of the automobile and its striking Officer Cambridge is not prima facie proof that battery was committed by someone is tacitly conceded by the majority in the statement that “no crime at all was committed unless the defendant Green committed it.” That statement says, by implication, that if Harris (the driver) caused the lurch it was accidental, but if Green caused it, it was with intent to batter, or to kill, Cambridge. The ultimate implication is that those implied facts make it proper for the State to prove that the criminal agency element of the corpus delicti by defendant’s admission. Were that true it would be proper to prove the criminal agency in a fire by the admission or confession of the accused arsonist.

¶18Defendant’s motion to correct errors, drafted by his court appointed trial counsel, was on the sole ground that the court’s decision “is not supported by sufficient evidence on all elements”. However, his statement, pursuant to Trial Rule 59 (B), “of the facts and grounds upon which the errors are based” is directed solely to the question whether the evidence was sufficient to imply intent to injure or kill. It made no contention that it was insufficient because it rested in any part upon defendant’s extrajudicial admission.4 Defendant’s court appointed appeal counsel (not his trial attor*90ney) nevertheless made this statement in his argument that the evidence was insufficient:

“There was no evidence presented to actually prove the Appellant caused the car to lunge forward to strike the deputy sheriff. Cambridge did not actually testify that he saw the Appellant cause the car to lunge forward and hit him. During the course of the scuffle, one or both of the individuals could have touched the car’s accelerator pedal and caused it to jump forward. Deputy Cambridge’s testimony was based merely on conjecture and supposition; he could not have seen who actually struck the accelerator pedal. Then too, in the course of the struggle, it can be surmised that if, indeed, the Appellant had struck the accelerator, such action was truly accidental and not done with intent to kill Deputy Cambridge.”

¶19On first blush the premise of that argument, that there is no probative evidence that defendant caused the car’s lunge, appears fallacious and misleading in that it ignores defendant’s jailhouse admission that he tried to run over Cambridge. On second thought, however, one realizes that such an admission cannot be the sole evidence of any essential element of the corpus delicti. Thus by indirection, by what it fails to say, this argument is an argument that the State failed to make prima facie proof of the corpus delicti by evidence independent of defendant’s extrajudicial admission. But because of its ambiguous suggestion that there was some testimony that defendant had depressed the accelerator, it is a weak argument. But a careful reading of the transcript of the evidence fails to reveal any such testimony.5 There is no *91evidence, save defendant’s admission, to show what caused the car’s lunge forward was criminally caused.

¶20In my view, any conviction which rests solely on defendant’s confession or admission as to any essential element of the corpus delicti is so fundamentally erroneous that it should be reversed, even though we raise the issue sua sponte after defendant’s court appointed trial counsel has technically *92waived the error. Fisher v. United States (1946), 328 U.S. 463, 467-8; Wiborg v. United States (1896), 163 U.S. 632; Vestal, Sua Sponte Consideration in Appellate Review, 27 Fordham L.R. 477, 503, 506; Wright, 3 FED. PRAC. & PROC. 372, §856; Sanford v. State (1971), 255 Ind. 542, 544, 265 N.E.2d 701; Summers v. State (1967), 248 Ind. 551, 230 N.E.2d 320, 11 Ind. Dec. 351.

¶21Note. — Reported at 304 N.E.2d 845.