PEOPLE v McMAHAN

548 N.W.2d 199, 451 Mich. 543

• Court: Michigan Supreme Court
• Decided: May 21, 1996
• Docket: 98505, Calender No. 9
• Status: Published

Opinions

Mallett, J.

Defendant was convicted by a juiy of second-degree murder under MCL 750.317; MSA 28.549. The Court of Appeals reversed defendant’s conviction on the ground that the criminal-agency component of the coipus delicti of the crime was not established independent of defendant’s confession. Unpublished opinion per curiam, entered December 14, 1993 (Docket No. 144657). We agree and affirm.

i

On August 13, 1985, Carolyn Kenyon left her apartment and was never seen or heard from again. She left in bare feet, wearing a sleeveless shirt and shorts, and did not take her purse, her medication,¹ or any identification with her. She left in defendant’s company, saying she was going to his house and would be back by midnight.

An extensive search for her ensued, but was unsuccessful. At trial, the rather exhaustive efforts to find any trace of her were related by over forty-four witnesses.² Testimony revealed that there is no reasonable explanation for her disappearance, that she had not been seen since August 13, 1985, and that she had not been in contact with any of the governmental agencies³ with which she had frequent contact in the past. She was not discovered in any hospital or morgue. Nor did any other physician contact her physician for her records.

On March 19, 1990, almost five years after Carolyn Kenyon’s disappearance, defendant was investigated in connection with the murder of a ten-year-old girl. In connection with this investigation, defendant gave three separate statements to Detroit police officers in which he confessed not only to killing the child, but also Carolyn Kenyon, and his wife, Cheryl Burwell.⁴ In statements with respect to Carolyn Kenyon’s disappearance, defendant indicated that he and Carolyn Kenyon were at his house drinking and smoking marijuana.⁵ Defendant stated that Ms. Kenyon said something that angered him, and that he suddenly stabbed her in the chest.⁶ According to the defendant, he buried Carolyn Kenyon’s body in the basement of the house for a couple of days. Subsequently, he reburied the body at another nearby location before he finally placed it in trash bags and then in a city dumpster. Police investigations conducted in an attempt to substantiate the defendant’s stray were unsuccessful. See part in.

The trial judge admitted into evidence defendant’s extrajudicial confessions made to the police officers. The jury returned a verdict of guilty of second-degree murder. The Court of Appeals reversed, stating, “While we believe that the evidence presented establishes the death of Carolyn Kenyon, the evidence is almost nonexistent to show some criminal agency as the cause of death independently of defendant’s confession.” Slip op at 3. We agree.

n

We are asked by the prosecution to reverse the decision of the Court of Appeals and to find that the defendant’s extrajudicial confessions were properly admitted. To achieve such a result, the prosecution requests this Court to examine the continued viability of the common-law corpus delicti requirement in light of its federal counterpart, the trustworthiness doctrine. We decline the invitation to replace our common-law corpus delicti standard with the trustworthiness doctrine adopted by the federal judiciary.⁷ Rather, we reaffirm in this opinion that the common-law corpus delicti requirement remains the rule of law in this state.⁸

In Michigan, it has long been the rule that proof of the corpus delicti is required before the prosecution is allowed to introduce the inculpatory statements of an accused. People v Williams, 422 Mich 381, 388; 373 NW2d 567 (1985); People v Allen, 390 Mich 383; 212 NW2d 21 (1973). The underlying purposes of the corpus delicti requirement are (1) “to guard against, indeed to preclude, conviction for a criminal homicide when none was committed,” Williams at 388, and (2) “to minimize the weight of a confession and require collateral evidence to support a conviction.” Hall, General Principles of Criminal Law (2d ed), ch VII, p 226.

In Michigan, the corpus delicti of murder requires proof both of a death and of some criminal agency that caused that death. Williams, supra. We emphasize that such proof must consist of evidence that is independent of the accused’s confessions. People v Konrad, 449 Mich 263, 269-270; 536 NW2d 517 (1995) (“the rule provides that a defendant’s confession may not be admitted unless there is direct or circumstantial evidence independent of the confession establishing [1] the occurrence of the specific injury [for example, death in cases of homicide] and [2] some criminal agency as the source of the injury”).⁹ Once the corpus delicti of the crime is established, appropriate extrajudicial confessions of the accused are admissible.¹⁰

We continue to believe that criminal agency is an essential component of the corpus delicti requirement.¹¹ Absent some showing of criminal agency, there are any number of possible explanations for an individual’s disappearance, including death by accidental means. People v Kirby, 223 Mich 440; 194 NW 142 (1923). In particular, this Court has underscored the importance of the criminal-agency requirement in cases where, as here, the victim’s body is not found.

The confession of a defendant charged with homicide cannot be taken as evidence of the fact of the death of a human being by criminal means. In cases of homicide the corpus delicti may or may not be established by evidence disclosed by a dead body. If a body discloses death occasioned by criminal means then the corpus delicti is made out. If a dead body does not furnish such proof then death by criminal means must be shown to establish the corpus delicti. If the body, or remains thereof, cannot be produced, death by criminal means must be shown in order to establish the corpus delicti. [Id. at 451 (Wiest, C.J., concurring) (emphasis added).]

The facts in the case sub judice are analogous to the situation presented to the Court in Kirby. In Kirby, this Court found that the disappearance of an infant, by itself, was insufficient to establish the corpus delicti of murder. Id. at 449. Aside from the extrajudicial statements of the grandmother that the infant died because of “her neglect,” there was no evidence of criminal agency.¹² Absent independent evidence to support a finding of death by. criminal means, this Court held that the corpus delicti of murder was not established. Id.

In the instant case, there was no motive presented at trial, aside from the defendant’s confessions. No murder weapon was recovered. Furthermore, the body was not recovered; therefore, no autopsy could be performed.¹³ We realize that part of the evidence-collection problem was because defendant’s confessions were given to police almost five years after the alleged killing. Nevertheless, the prosecution failed to present evidence, apart from defendant’s confession, that Carolyn Kenyon’s disappearance and presumed demise were the result of some criminal agency. As noted by the Court of Appeals:

[TJhere is no evidence of her death being caused by a criminal agency. The knife defendant allegedly used to stab her was never recovered, although at least three witnesses testified that defendant carried knives in a pouch on his belt. No human bloodstains were ever found in defendant’s house and there were no other articles found with bloodstains on them. The human scents found by the dog in the crawl space and outside the house near the alley do not conclusively prove whose scents the dog was tracking and we note that this occurred approximately 4'/2 years after Carolyn’s disappearance. A police officer did find an area in the basement where it appeared that a hole had been dug and filled back in, but there was no way to determine when this occurred. Further, there was no evidence that defendant ever hit or acted violently toward Carolyn during their relationship. No evidence of a possible motive was ever established at trial. There was no witness to any part of the killing or disposal of the body. [Slip op at 3.]

Consequently, we agree that death by criminal agency was not established.

The Court of Appeals rejected the prosecution’s claim that People v Brasic, 171 Mich App 222; 429 NW2d 860 (1988), and People v Modelski, 164 Mich App 337; 416 NW2d 708 (1987), support the conclusion that criminal agency was established in the case sub judice.

In Brasic and Modelski, this Court found that the corpus delicti of the homicides had been established and that the confessions were therefore properly admitted. In Brasic, however, there was evidence that a witness saw the victim and the defendant enter a van where the witness believed they had sex. The witness also heard the defendant say that he wanted to perform anal sex on the victim to which she responded that she would not. The defendant then proceeded to hit the victim for ten to fifteen minutes. The victim was last seen with the defendant. Thus in Brasic, there was evidence that the defendant had acted violently toward the victim just prior to her disappearance.

In Modelski, there was evidence that the marriage between the defendant and his wife (who disappeared) was deteriorating and that the defendant accused his wife of infidelity. There was evidence that the defendant and his wife argued and fought a great deal. After her disappearance, the defendant directed a co-worker to listen to a song entitled “Kill my Wife” and the defendant gave away his ■wife’s personal effects after her disappearance. Thus in Modelski, there was also evidence of arguments and violence between the defendant and the victim and the defendant’s actions after her disappearance helped to establish the coipus delicti of the offense. [Slip op at 3.]

We agree with the Court of Appeals that evidence of criminal agency equivalent to that in Brasic and Modelski is not present in the instant case. Although the trial testimony indicates that Carolyn Kenyon was last seen alive with defendant, there was no testimony of any problems or altercations between the defendant and Carolyn Kenyon either on the night she disappeared or anytime previously in their relationship.

IV

Thus, under the current formulation of the corpus delicti rule, the Court of Appeals properly decided this case. We reiterate that the corpus delicti of murder requires a showing of death by criminal means. We agree with the Court of Appeals that the evidence presented at trial indicates that Carolyn Kenyon is deceased, even though her body has not been recovered. Furthermore, we agree that without defendant’s confession, there is insufficient evidence that her death was the result of a criminal agency. Carolyn Kenyon’s disappearance and presumed demise, alone, are not sufficient evidence of a death caused by criminal agency.

v

The evidence presented by the prosecution did not establish a death by criminal agency. Without a showing of criminal agency, the corpus delicti of murder was not established and the defendant’s confessions were improperly admitted. The Court of Appeals reversal of defendant’s conviction is affirmed.

Briceley, C.J., and Levin and Cavanagh, JJ., concurred with Mallett, J.

1 She was taking medication for thyroid and mild epileptic conditions.

2 Carolyn Kenyon’s daughters testified that their mother had a relationship with defendant, but was also seeing other men. The daughters also testified that on and until the day of their mother’s disappearance, they were not aware of any difficulties between their mother and the defendant. Furthermore, there was no testimony to indicate the existence of any previous altercations between Carolyn Kenyon and the defendant.

3 Her means of support were Medicaid, food stamps, and Aid For Dependent Children. Furthermore, she has not renewed her driver’s license since her disappearance.

4 Burwell’s body also was never found. Defendant apparently committed that murder in late June 1986. He pleaded guilty of second-degree murder in his wife’s death. That conviction was affirmed by the Court of Appeals on October 2, 1992 (Docket No. 144658). The defendant does not raise that matter here. He is presently serving a 50- to 100-year term for the murder of Cheryl Burwell. He was also convicted of first-degree murder in the death of the ten year old. His appeal from this first-degree murder conviction was affirmed by the Court of Appeals on September 12, 1994. An application for leave to appeal was not filed with this Court. Docket No. 135826.

5 It is unclear from the record if both Carolyn Kenyon and the defendant were under the influence of drugs and alcohol. Carolyn Kenyon’s daughters did, however, testify that their mother had a drinking problem.

6 Although defendant’s three confessions are consistent on the issue how he killed and disposed of Carolyn Kenyon, his reason for killing her remains unclear.

7 The United States Supreme Court summarized the federal trustworthiness doctrine in the following manner:

[T]he 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 malee the admission reliable, thus corroborating it while also establishing independently the other necessary elements of the offense. [Citation omitted.] It is sufficient if the corroboration supports the essential facts admitted sufficiently to justify a jury inference of their truth. [Opper v United States, 348 US 84, 93; 75 S Ct 158; 99 L Ed 101 (1954).]

Under the federal standard, the prosecution would not need to independently establish death by criminal cause, but rather would only need to establish evidence that indicates that the defendant’s confessions were trustworthy under the circumstances.

We do not believe that this result comports with the underlying purpose of the coipus delicti doctrine. The underlying purposes of the corpus delicti requirement are (1) “to guard against, indeed to preclude, conviction for a criminal homicide when none was committed,” People v Williams, 422 Mich 381, 388; 373 NW2d 567 (1985) and (2) “to minimize the weight of a confession and require collateral evidence to support a conviction.” Hall, General Principles of Criminal Law (2d ed), ch VII, p 226. “There can be no criminal without a crime in fact committed.” People v Kirby, 223 Mich 440, 452; 194 NW 142 (1923) (Wiest, C.J., concurring).

This Court remains unconvinced that the protection afforded an accused by the common-law coipus delicti standard is no longer needed. The constitutional protections cited by the dissent are not foolproof. We favor the common-law approach, because we continue to believe that an accused deserves the benefit of independent proof of the crime, particularly in those situations in which no body is recovered. Furthermore, the prosecution has not persuaded this Court that the common-law coipus delicti doctrine should be changed. Consequently, this Court chooses not to modify the coipus delicti of murder in the manner articulated in Opper v United States, supra.

8 Additionally, we find appellant’s alternative theory that under MRE 104(a), the defendant’s confessions can be used in establishing its own admissibility also to be without merit.

9 Michigan’s adherence to the common-law corpus delicti is not an aberration. Despite the federal judiciary’s decision to abandon the common-law corpus delicti standard in favor of the trustworthiness doctrine, Opper, supra, many other states continue to abide by the common-law corpus delicti doctrine. According to 1 McCormick, Evidence (4th ed), § 145, p 557, most jurisdictions still require that the evidence contain independent proof of the corpus delicti. See also 7 Wigmore, Evidence (Chadboum rev), § 2071, p 511, n 3.

10 The corpus delicti requirement is merely a preliminary procedural requirement. An extrajudicial confession must also meet other evidentiary tests before it is admissible, i.e., it must be voluntary.

11 We reject the prosecution’s suggestion that death alone should satisfy the corpus delicti requirement.

12 Kirby at 442. Justice Wiest noted: “In the instant case no witness testified that the babe was dead. No one found its remains, though the back yard was dug up, cemeteries were searched, and the furnace was examined.” Id. at 449.

13 Although we accept that production of the deceased’s body is not required to prove the corpus delicti, in many cases an analysis of the body of the deceased will reveal death by a criminal agency.