State v. Weller

STATE_V_WELLER.92-342; 162 Vt. 79; 644 A.2d 839

[Opinion Filed May 20, 1994]


 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 92-342


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 2, Chittenden Circuit

 Scott E. Weller                              June Term, 1993



 Linda Levitt, J.

 Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt, Assistant
     Attorney General, Montpelier, for plaintiff-appellee

 Robert Appel, Defender General, and William A. Nelson, Appellate Attorney,
    Montpelier, for defendant-appellant


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



      JOHNSON, J.   Defendant Scott Weller appeals from a conviction of arson
 in violation of 13 V.S.A. { 502.  On appeal he argues that the trial court
 erred in (1) refusing to instruct the jury that it could not convict on the
 basis of his admissions of guilt alone, and (2) excluding an excited
 utterance by a woman at the scene that someone other than defendant had
 started the fire.  We affirm.
      Defendant was charged with arson in the burning of a portion of an
 apartment building where the boyfriend of his then-estranged wife lived.
 The State presented a police arson investigator who described his
 investigation in detail and offered his opinion that the fire was not caused

 

 accidentally, but rather was the result of human action.  The State linked
 defendant to the setting of the fire by introducing evidence of defendant's
 admissions of guilt.  The State presented testimony and a tape recording of
 defendant's statement, made on the telephone to his former sister-in-law and
 overheard by his ex-wife, that he had set the fire.  The State also called a
 witness who knew defendant when they were both correction center inmates.
 This witness testified that defendant had confided that he was worried that
 he would be charged with arson of a building where his ex-wife and her
 boyfriend lived.  The witness also testified that defendant had told the
 witness that he had set the fire in the hallway and made it look like
 someone else had started it, that defendant had commented when he saw a fire
 on television that "his fire" had been bigger, and that defendant was going
 to use a friend as an alibi.
      Defendant called several alibi witnesses.  In addition, defendant
 called David Laney, who testified that he had been at the scene of the fire.
 The court ruled that Laney's proffered testimony that he heard a "dark-
 haired stranger" say that her brother had set the fire was inadmissible
 hearsay.  The jury returned a verdict of guilty, and the present appeal
 followed.
                                     I.
      Defendant's first argument is that the trial court should have
 instructed the jury that it could not convict defendant on the basis of his
 extrajudicial admissions alone and that its refusal to do so was reversible
 error.  Accordingly, defendant contends that he could have been convicted on
 the basis of his admissions without other evidence of the corpus delicti,
 and thus his conviction must be reversed.

 

      The State argues that we need not reach this issue because defendant
 failed to preserve it.  At the charge conference, defense counsel asked the
 court to instruct the jury that it could not convict defendant on the basis
 of his extrajudicial statements alone.  After a discussion, the court
 indicated that it would not give the proposed instruction.  After further
 discussion of the issue, defense counsel stated that if the first element of
 the arson charge "were to say that the fire had been set by human action,"
 rather than that the fire had been set by defendant, "then I would agree
 with you."  The judge agreed.  After the judge instructed the jury, defense
 counsel objected that the initially proposed instruction was not given.
      Because defense counsel expressed agreement to the instructions at the
 charge conference, the State argues the issue was not preserved.  We dis-
 agree.  Vermont Rule of Criminal Procedure 30 provides: "No party may
 assign as error any portion of the charge or omission therefrom unless he
 objects thereto before the jury retires to consider its verdict, stating
 distinctly the matter to which he objects and the grounds of his objection."
 (Emphasis added.)  Defendant's post-charge objection satisfied the require-
 ment of the rule and the "primary reason for the rule" -- it gave "the trial
 court one last opportunity to avoid an error."  State v. Wheelock, 158 Vt.
 302, 306, 609 A.2d 972, 975 (1992); cf. State v. Parker, 139 Vt. 179, 183,
 423 A.2d 851, 853 (1980) (defendant's request that trial court not instruct
 jury on lesser-included offense "coupled with the defendant's failure to
 object to the [absence of such a] charge . . . constitutes a waiver of the
 objection").  Thus, we will reach the merits of defendant's argument.
      It is a general principle of law "that extra-judicial confessions,
 alone and uncorroborated, are insufficient to establish the corpus delicti,"

 

 State v. Goyet, 120 Vt. 12, 48, 132 A.2d 623, 647 (1957), and will not
 support a conviction.  The corroboration rule is satisfied if there is
 evidence of the corpus delicti independent of a defendant's admissions.  It
 is not necessary, however, that the corroborating evidence "independently
 prove the commission of the crime charged, either beyond a reasonable doubt
 or by a preponderance of the evidence."  Id.  "[S]light corroboration may be
 sufficient."  Id.
      Vermont defines the corpus delicti of arson as a building burned as the
 result of criminal agency.  State v. Perras, 117 Vt. 163, 167, 86 A.2d 544,
 546 (1952); State v. Lizotte, 109 Vt. 378, 385, 197 A.2d 396, 399 (1938).
 In other words, the corpus delicti is that someone committed the crime of
 arson.
      Though defendant challenges the thoroughness and certainty of the
 State's arson investigator, he concedes that the testimony of the arson
 investigator that the fire was of a criminal origin met the low threshold
 for corroboration and that the judge did not err in submitting this case to
 the jury.  Defendant argues, nonetheless, that the judge erred in failing to
 instruct the jury that it could not convict defendant solely on the basis of
 his admissions.  In other words, defendant urges this Court to reverse his
 conviction because the instructions left the jury free to conclude that the
 fire was of criminal design on the basis of defendant's out-of-court state-
 ments alone.  We hold that the question of whether there is sufficient cor-
 roboration of the corpus delicti is a legal question to be decided by the
 trial court alone and should not be submitted to the jury for redetermin-
 ation.

 

      The few jurisdictions that have addressed this issue have divided over
 its resolution.  The Sixth Circuit and New York have held that the question
 of whether a defendant's admissions have been sufficiently corroborated
 should be determined by the jury.  See United States v. Marshall, 863 F.2d 1285, 1288 (6th Cir. 1988); People v. Reade, 191 N.E.2d 891, 893-94, 241 N.Y.S.2d 829, 833 (N.Y. 1963).  Both courts reasoned that unless the
 question of corroboration was submitted to the jury, the jury "could return
 a verdict of guilt solely on the strength of the confession."  Reade, 191 N.E.2d  at 894, 241 N.Y.S.2d  at 833; accord Marshall, 863 F.2d  at 1288.
      In contrast, Iowa, which has adopted the corroboration rule by statute,
 and Virginia have concluded that the question of corroboration is for the
 judge alone.  See State v. Webb, 31 N.W.2d 337, 342 (Iowa 1948); Watkins v.
 Commonwealth, 385 S.E.2d 50, 55 (Va. 1989), cert. denied, 494 U.S. 1074
 (1990).  These courts reasoned that "if the evidence of a confession is not
 accompanied by other proof . . . that a crime has in fact been committed,"
 then it is "the duty of the court to direct a verdict for defendant."  Webb,
 31 N.W.2d  at 342; accord Watkins, 385 S.E.2d  at 55.  Thus, if a trial court
 decides there is sufficient corroboration, then no jury instruction is
 necessary.
      We conclude that the better rule is for the judge alone to consider
 whether there is sufficient corroboration of the corpus delicti.  The reason
 for the rule is "to avert '[t]he danger that a crime may be confessed when
 [in fact] no such crime . . . has been committed by any one.'"  Reade, 191 N.E.2d  at 892, 241 N.Y.S.2d  at 831 (quoting People v. Lytton, 178 N.E. 290,
 291, 257 N.Y. 310, 314 (N.Y. 1931)).  The trial court is well-situated to
 determine whether the evidence from sources other than a defendant's

 

 admissions is sufficient to corroborate that a crime was in fact committed
 by someone.  Its consideration of this issue will adequately insure that the
 reason for the rule is satisfied before the jury is ever allowed to consider
 the admissions.
      Moreover, defendant will also be protected by customary jury
 instructions.  The jury, of course, will be charged with determining whether
 the State proved the elements of the crime beyond a reasonable doubt.  To
 that end, the jury is free "to consider the admissions in connection with
 all the other evidence in the case and to decide whether the guilt of the
 [defendant] ha[s] been established beyond a reasonable doubt."  Opper v.
 United States, 348 U.S. 84, 94 (1954); accord Webb, 31 N.W.2d  at 342;
 Watkins, 385 S.E.2d  at 55 n.3.  In addition, the jury, as in this case, will
 be instructed that it has unlimited discretion regarding what weight it
 might give to any evidence, or lack thereof, including the admissions, and
 that the State must prove a defendant's guilt beyond a reasonable doubt.
 See State v. Giroux, 151 Vt. 361, 365, 561 A.2d 403, 406 (1989) (reasonable
 doubt may "spring" from evidence or lack thereof).
                                     II.
      Defendant next argues that the court's exclusion of an excited
 utterance -- that someone other than defendant started the fire -- was
 reversible error.  Defendant offered the testimony of David Laney, an
 acquaintance of defendant, who claimed to have driven to the fire scene out
 of curiosity.  He testified that an hysterical young woman with long black
 hair approached him at the fire and asked him a question.  The State
 objected on hearsay grounds.  According to the proffer, Mr. Laney would have
 testified that this woman asked him, "Where's my brother?  Where's my

 

 brother?  I'm looking for my brother.  He set the fire."  Defendant argues
 that this statement, which the trial court excluded, should have been
 admitted as an excited utterance.  We affirm, because even if defendant is
 correct, under the strictest of harmless-error standards, any error was
 harmless.(FN1)
      The woman's alleged comments had little probative value under the
 circumstances, and other evidence of guilt was abundant.  The probative
 value was slim because there was no assurance of the reliability of a state-
 ment spoken by an unidentified person.  In addition, defendant offered no
 basis for the woman's apparent knowledge that her brother had started the
 fire.  On the other hand, the State offered testimony from defendant's ex-
 wife, each of her sisters, and defendant's cellmate that defendant had made
 incriminating statements, and introduced a tape recording of defendant's
 incriminating remarks to one of his former sisters-in-law.  In light of the
 incriminating evidence and the low probative value of the proffered testi-
 mony, we conclude that if there was error, it was harmless beyond a
 reasonable doubt.
      Affirmed.

                                    FOR THE COURT:



                                    _______________________________
                                    Associate Justice

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                               Footnotes

FN1.  We need not decide what standard of harmless error to apply in this
 case because any error was harmless beyond a reasonable doubt.  See State v.
 Curavoo, 156 Vt. 72, 76-77, 587 A.2d 963, 965-66 (1991).