State v. Curlew

• Court: Maine Supreme Court
• Writing for the Court: ROBERTS
• Citation: 459 A.2d 160
• Decision Date: 19 April 1983
• Parties: STATE of Maine v. Kevin CURLEW.

Page 160

459 A.2d 160 STATE of Maine
v.
Kevin CURLEW. Supreme Judicial Court of Maine. Argued Sept. 21, 1982.
Decided April 19, 1983.

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Charles K. Leadbetter, Asst. Atty. Gen. (orally), Augusta, Janet T. Mills, Dist. Atty., Auburn, for plaintiff.

Berman, Simmons, Laskoff & Goldberg, Jeffrey Rosenblatt (orally), Lewiston, for defendant.

Before GODFREY, NICHOLS, ROBERTS, CARTER, VIOLETTE and WATHEN, JJ., and DUFRESNE, A.R.J.

ROBERTS, Justice.

Kevin Curlew appeals from a conviction in the Superior Court, Androscoggin County, upon an indictment charging that he subjected a male child to unlawful sexual contact in violation of 17-A M.R.S.A. § 255(1)(C) (1983). ¹ The issues he raises all relate to the nature and validity of our corpus delicti rule. Because the State failed to present sufficient extrinsic evidence of the corpus delicti, we reverse the judgment of conviction.

I.

The only evidence the State produced, other than statements made by the defendant, consisted of testimony from the father of the child. The father testified that on October 6, 1981, the day in question, his son was four years old. The father also stated that when he came home from work on that date, he saw ink "markings on his son's buttocks, legs, and in the groin area...." More specifically, the father testified that he saw the words "love it" written across the boy's buttocks and that he saw two circles containing smiles drawn on the boy's knees. He testified that two lines were

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drawn "coming down in the creases of his legs where it met his crotch." He stated, however, that neither line touched the penis and that he could not remember how far these lines were from the penis. He testified that he remembered a picture of a sun with rays and a snake with eyes but that he could not recall where the markings were located on the boy's body. Finally, according to the father, his residence is located within a few hundred feet of Kevin Curlew's home.

An Auburn police officer testified that on October 6, 1981, after speaking with the father of the child, he went to Kevin Curlew's home. The officer testified that he read the defendant the Miranda warnings and the defendant voluntarily chose to waive his rights. According to the officer, while talking with the defendant, the officer observed that the defendant appeared to be very excited and talkative. When the prosecutor asked the officer to tell the court what the defendant had said to him, defense counsel objected on the grounds that any statements were inadmissible until the State had established that a crime had in fact been committed. The objection was overruled.

The officer proceeded to testify that the defendant had stated that the child was at Curlew's home and that the boy and he, Curlew, were playing different types of army games. The officer testified that the defendant had told him that the boy and he, Curlew, then went into the bedroom where the defendant drew pictures of flowers, snakes, and smile figures on the boy and wrote "open me or something like baby bunt (phonetic) and he wrote it backwards." The officer testified that Curlew had told him that "because it was backwards you had to have a mirror to read it." According to the officer, the defendant had said that he had touched the boy's penis. Additionally, the officer testified that he "kept asking [Curlew] why he did it" and the defendant "kept saying he wanted to get away from his mother." The officer also stated that "he kept saying that he wanted to do it because he wanted to go to prison so that he could learn a trade." The police officer testified further that prior to October 6 he had known Kevin Curlew, that Curlew was probably in his mid-twenties, and that the officer understood Curlew "to be a little bit slow."

After the State rested its case, defense counsel made a motion for judgment of acquittal but counsel did not renew the motion after the defense rested. ² Subsequent to the trial, the defendant filed a motion for a new trial on the grounds that the State had failed to establish the corpus delicti prior to introducing the inculpatory statement made by the defendant. The justice found that

[i]n addition to the lines and the pictures that were drawn on the boy's buttocks and specifically the word "love it" on the boy's buttocks, and the pictures on his thighs. And from this I could only conclude that in the first place the little boy had his clothing on at the time he went with Mr. Curlew. The clothing was taken off. I think it is reasonable to conclude that either Mr. Curlew took that clothing off or assisted the little boy. In any event, whether he did or did not take the little boy's clothes off or assisted the little boy in taking his clothes off, the marker pen lines in the area of the genitals--that from that I could only conclude that the defendant had contact with the genitals of [the child] and his reason for doing so would be for sexual gratification.

The court, therefore, denied the motion.

II.

In our analysis of the corpus delicti issue, we will discuss in part II that aspect

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of the rule which deals with the order of proof at trial (the evidence rule). In part III, we will consider that aspect of our corpus delicti rule which requires that the State prove the corpus delicti on the whole record exclusive of any confession or admission of the defendant (the substantive rule). Curlew asks that we determine the continued validity of the order-of-proof requirement of our corpus delicti rule following the promulgation of M.R.Evid. 611(a). ³ The impact of Rule 611(a) has not previously been decided. See State v. Carmichael, 444 A.2d 45, 48 n. 2 (Me.1982); State v. Roy E.S., 440 A.2d 1025, 1029 (Me.1982) (citing Field and Murray, Maine Evidence § 611.1 at 154 (1976)); State v. Snow, 438 A.2d 485, 487 n. 2 (Me.1981) (citing Field & Murray, supra, at 154). To the extent that our comments have created doubts about the order-of-proof requirement, we now settle those doubts.

In State v. Levesque, 146 Me. 351, 81 A.2d 665 (1951), the first modern application of a corpus delicti rule appears. ⁴ We stated that "the weight of authority in this country, at least, appears to be from the decided cases that the corpus delicti cannot be established by the extra-judicial confession of the respondent unsupported by other evidence." 146 Me. at 358, 81 A.2d at 669. Subsequent decisions adopted the view that the "better practice," State v. Grant, 284 A.2d 674, 675 (Me.1971), or the "proper practice," State v. Kelley, 308 A.2d 877, 880 n. 4 (Me.1973), was to require proof of the corpus delicti before admitting in evidence a confession or admission of guilt. ⁵ A variety of reasons support the preferred practice. Cf. State v. Davis, 374 A.2d 322, 323 (Me.1977) (corpus delicti rule seeks to prevent conviction based on confession for crime not in fact committed); State v. Lafferty, 309 A.2d 647, 660 n. 6 (Me.1973) (function of judge to determine admissibility of confession under corpus delicti rule); see generally State v. Collins, 297 A.2d 620, 632-36 (Me.1972) (describing basis for requiring that trial judge...