Opinion
No. 8428SC1346
Filed 1 October 1985
Criminal Law 106.4; Automobiles and Other Vehicles 127.3 — DWI — defendant's confession — insufficient evidence of corpus delicti There was insufficient evidence to convict defendant of driving while impaired where a Mr. Hall, asleep in his home, heard a loud noise, saw a vehicle which had been wrecked on the highway in front of his home, and saw defendant in the area; defendant told a highway patrolman that he had been driving the automobile at the time of the accident; and defendant was under the influence of alcohol at that time in the opinion of the patrolman. Proof that there was an accident and that an intoxicated person later came to the scene does not prove that someone had been driving while impaired under State v. Brown, 301 N.C. 181 [ 308 N.C. 181]; without proof of the corpus delicti the statement of defendant to the patrolman should not have been admitted and there was insufficient evidence to convict the defendant.
APPEAL by defendant from Allen, Judge. Judgment entered 14 August 1984 in Superior Court, BUNCOMBE County. Heard in the Court of Appeals 17 September 1985.
Attorney General Lacy N. Thornburg, by Assistant Attorney General W. Dale Talbert, for the State.
Roberts, Cogburn, McClure Williams, by Max O. Cogburn and Isaac N. Northup, Jr., for defendant appellant.
Judge BECTON concurring in the result.
Judge MARTIN dissenting.
The defendant was tried for driving while impaired. The State's evidence showed that Horace W. Hall, Jr. was asleep in his home on 13 May 1984 when he heard a "loud noise." He looked out his window and saw an automobile lying upside down in the highway. He saw someone leave the automobile. Mr. Hall called the sheriff's department and a deputy arrived ten or fifteen minutes later. A highway patrolman arrived approximately thirty minutes after Mr. Hall had called. R. L. Robinson, a trooper with the highway patrol testified he arrived at the scene at approximately 3:15 a.m. and talked to the defendant at approximately 3:30 a.m. Mr. Robinson testified that the defendant told him he had been driving the automobile at the time of the accident and had not drunk any alcoholic beverage since the accident. In the opinion of Mr. Robinson the defendant was under the influence of alcohol at the time he talked to him. A breathalyzer test was administered to the defendant which showed he had a blood alcohol content of .14%.
The defendant offered no evidence. He was convicted and appealed from the sentence imposed.
The defendant assigns error to the denial of his motion to dismiss. We hold, pursuant to State v. Brown, 308 N.C. 181, 301 S.E.2d 89 (1983), that we are bound to sustain this assignment of error. In Brown our Supreme Court reversed a conviction for unlawful burning of personal property. The evidence in that case showed that a house trailer owned by Cindy Blackman was destroyed by fire. Cindy Blackman had been out of town for two weeks when the fire occurred. Certain items of her clothes, which she testified were in the trailer when she left, were found in the defendant's room. The defendant signed a confession in which he said, "I, Ricky Brown, burnt down a trailer last night at Sid Jones Trailer Park belonging to Cindy." Our Supreme Court held this was not sufficient evidence to support a conviction. It held that in order to prove the corpus delicti which would make the confession admissible the State must first prove that a crime had been committed. It said, "However, the State's evidence was insufficient to show the fire had a criminal origin. In fact it is just as reasonable to assume from the State's evidence that the fire was the result of a negligent act or an accident." Id. at 183-184, 301 S.E.2d at 90. Without the confession there was not sufficient evidence to convict Brown.
In this case the evidence without the defendant's statement is that Mr. Hall heard a loud noise, that he saw a vehicle which had been wrecked on the highway in front of his home, and that he saw the defendant who was under the influence of an intoxicating beverage in the area. We do not believe under Brown that proof that there was an accident and an intoxicated person later came to the scene proves in this case the crime that someone had been driving while impaired. Without proof of the corpus delicti the statement of the defendant to Mr. Robinson should not have been admitted. There was not sufficient evidence to convict the defendant.
We make a few additional comments in the hope that our Supreme Court will reconsider its position and overrule Brown. The author of this opinion was also the author of the opinion in Brown when it was in this Court. The panel of this Court which rendered the decision was so certain we were following a well enunciated rule that we affirmed the conviction without a published opinion. We did not understand the rule as to proof of corpus delicti in order to make a confession admissible as it was written in Brown.
We followed a rule which we felt 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 (1975), death sentence vacated, 428 U.S. 908 (1976); State v. Jenerett, 281 N.C. 81, 187 S.E.2d 735 (1972); and State v. Whittemore, 255 N.C. 583, 122 S.E.2d 396 (1961). This rule was stated by Chief Justice Branch in Thompson 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.
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 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 deceased's body; and his girlfriend saw some empty shells in the possession of the defendant. We do not believe this evidence which was relied on to establish the corpus delicti proves a murder had been committed.
In Whittemore a 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. Our Supreme Court said that this was not enough to convict the defendant of either crime. The defendant confessed, however, and the Court held that the testimony of the State's witness and the confession were enough to sustain the conviction. We believe Whittemore contains a square holding that it is not necessary to prove a crime has been committed in order to make the confession admissible. 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.
. . . .
Suffice it to say that the evidence offered by the State was subject to an explanation and interpretation by defendant himself . . . . Circumstances capable of an innocent construction may be interpreted in the light of defendant's admissions, and the fact under investigation be thus given a criminal aspect.
255 N.C. at 589, 122 S.E.2d at 401.
Justice Dan Moore in Jenerett quoted Whittemore with approval. In State v. Macon, 6 N.C. App. 245, 170 S.E.2d 144 (1969) 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. Our Supreme Court affirmed this holding at 276 N.C. 466, 173 S.E.2d 286 (1970). We believe that the fact that there was a bullet hole through the victim's skull did not prove she was murdered. It could have been just as easily inferred that it was an accident or that it was a suicide. We 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. Judge Parker, writing for this Court in Macon, said:
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."
6 N.C. App. at 253, 170 S.E.2d at 149.
2 H. Brandis, Brandis on N.C. Evidence 2nd Rev. Ed. 182 at page 65 quotes from Chief Justice Branch's opinion in Thompson as to the evidence necessary to make a confession admissible. We believe our Supreme Court in Brown has rejected the test as stated in Brandis. We believe it has overruled the holdings of Whittemore and Macon without citing them. We also believe it overruled the language of Green and Jenerett and the ground on which Chief Justice Branch placed the holding in Thompson.
Our Supreme Court dealt with the necessity of proving the corpus delicti to make admissible a confession in State v. Franklin, 308 N.C. 682, 304 S.E.2d 579 (1983). In that case there was evidence that the deceased had been murdered. The Court held this was sufficient proof of the corpus delicti for the admission of a confession to felony murder. The Court cited Green and Thompson but did not discuss them. It did not cite Jenerett, Whittemore or Macon. The court cited Brown with approval.
We believe that Brown marked a radical departure from prior law in this state. We have discussed the proof of corpus delicti necessary to make a confession admissible in the hope that our Supreme Court will reconsider this rule and overrule Brown. We believe Chief Justice Branch properly stated the rule in Thompson as it then applied and we hope it will be reinstated. Confessions can be good evidence and should not be excluded by a rule which is not supported by reason. It is difficult to explain to the public why our law should say, as it did in Brown, that evidence that a woman left her trailer, the trailer was burned clothes the woman left in the trailer were found in the defendant's possession and the defendant said he burned the trailer is not enough evidence to convict the defendant of burning the trailer. It is equally hard to explain why it should say in this case that evidence that an automobile was wrecked on the highway that the defendant told a highway patrolman he had driven the automobile and that the defendant was under the influence of alcohol is not sufficient evidence to convict the defendant of driving while impaired. That is what we are forced to hold under Brown.
For the reasons stated in this opinion we reverse and remand with an order to dismiss the charge against the defendant.
Reversed and remanded.
Judge BECTON concurs in the result.
Judge MARTIN dissents.