State v. Dow

• Decision Date: 11 February 2010
• Docket Number: No. 81243-8.,81243-8.
• Citation: 168 Wash.2d 243,227 P.3d 1278
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Keith Ian DOW, Petitioner.

227 P.3d 1278

168 Wash.2d 243

STATE of Washington, Respondent, v. Keith Ian DOW, Petitioner.

No. 81243-8.

Supreme Court of Washington, En Banc.

Argued May 14, 2009.

Decided February 11, 2010.

John A. Hays, Attorney at Law, Longview, WA, for Petitioner.

Amie L. Hunt, Cowlitz County Prosecutor's Office, Kelso, WA, for Respondent.

C. JOHNSON, J.

¶ 1 This case involves a challenge to the application of RCW 10.58.035, a statute concerning the corpus delicti rule. RCW 10.58.035 permits a lawfully obtained and otherwise admissible statement of a defendant to be admitted when independent proof of the crime is absent, the alleged victim is dead or incompetent to testify, and the defendant's statement is found trustworthy based on a nonexclusive set of statutory factors that a trial court must consider. The State charged Keith Ian Dow with one count of first degree child molestation. The trial court found the alleged victim, a three-year-old child, was incompetent to testify. The only evidence the State had was Dow's own statement to the police; the State conceded this point to the trial court and again on appeal. The trial court found this statement to be trustworthy based on its application of the nonexclusive factors in RCW 10.58.035(2). Ultimately, the trial court also found the statement to be exculpatory and that the State lacked sufficient evidence to convict. The trial court dismissed Dow's case based on its finding that the statute fell below federal constitutional due process standards required under the federal corpus delicti rule. The Court of Appeals, in a split decision, reversed the trial court. It held that corpus delicti is a judicially created rule that originated in the common law (i.e., it was not constitutionally mandated). However, the Court of Appeals noted that RCW 10.58.035 addresses only admissibility and not sufficiency, thereby leaving intact the requirement that a defendant may not be convicted based on his or her confession alone. Although the Court of Appeals majority correctly recognized this principle, it reversed the dismissal and remanded the case to the trial court for a new hearing. We agree with the Court of Appeals that the statute is constitutional, but we disagree that the case needs to be remanded because, in this case, the State lacked any other evidence to proceed with the prosecution.

FACTS

¶ 2 The Cowlitz County prosecutor charged Keith Ian Dow with one count of first degree child molestation. At the time of the alleged offense, the child was three. Though the child was four by the time of the trial, the court found and the State conceded that the child was incompetent to testify and that her statements to others about the alleged offense were inadmissible. No persons other than Dow and the child were present at the time of the alleged offense.

¶ 3 During a recorded police interview, Dow made statements in which he recounted the events surrounding the alleged offense. The trial court found these statements to be exculpatory and not an admission. The State sought to introduce Dow's statements as substantive evidence that he committed the crime charged. Dow moved to exclude these statements, arguing they were inadmissible for lack of corpus delicti.¹

¶ 4 The State conceded that, without the victim's statement, it lacked any evidence independent of Dow's statement to establish the corpus delicti. But the State argued Dow's statements were admissible under RCW 10.58.035, a statutory modification of the corpus delicti rule applicable where the victim is dead or incompetent to testify. The trial court held a hearing and entered findings on the admissibility of Dow's statement.

¶ 5 In findings of fact (FF) 3, the trial court stated: "The court had reviewed the evidence available to the state, which includes the transcript of an interview ... with the defendant, which the state seeks to admit into evidence against the defendant. The state concedes there is no other available evidence against the defendant in this case." Clerk's Papers at 5-6. In FF 6, after it reviewed the transcript, the trial court found the contents of the defendant's statement ultimately to be exculpatory and insufficient to convict Dow of the crime charged.

¶ 6 In its written conclusions of law, the trial court found that, notwithstanding the statute, the State must at least satisfy the corroboration standard adopted in Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954) (requiring corroborative evidence independent of the defendant's confession to support the conviction). In doing so, the trial court reasoned the Opper standard constituted a federal constitutional minimum due process standard. In dismissing the charge, the trial court ruled that Dow's statement was inadmissible because RCW 10.58.035 falls below the Opper standard, violating the Fifth Amendment to the United States Constitution, and was thus unconstitutional.

¶ 7 The Court of Appeals reversed in a split, published decision. State v. Dow, 142 Wash.App. 971, 176 P.3d 597 (2008). We granted review and now reverse.

ISSUES

¶ 8 Is RCW 10.58.035 constitutional, or does it impermissibly erode the requirements of the corpus delicti doctrine?

STANDARD OF REVIEW

¶ 9 Generally, we review a trial court's decision of whether evidence is admissible for abuse of discretion. State v. Wade, 138 Wash.2d 460, 463-64, 979 P.2d 850 (1999). But determining the admissibility of a defendant's statement under RCW 10.58.035 is a mixed question of law and fact. The application of law is reviewed de novo. State v. Law, 110 Wash.App. 36, 39, 38 P.3d 374 (2002). Further, the trial court ruled that RCW 10.58.035 is unconstitutional, which we review de novo.

ANALYSIS

¶ 10 The corpus delicti doctrine generally is a principle that tests the sufficiency or adequacy of evidence, other than a defendant's confession, to corroborate the confession. State v. Brockob, 159 Wash.2d 311, 327-28, 150 P.3d 59 (2006). The purpose of the rule is to ensure that other evidence supports the defendant's statement and satisfies the elements of the crime. Where no other evidence exists to support the confession, a conviction cannot be supported solely by a confession. The purpose of the corpus delicti rule is to prevent defendants from being unjustly convicted based on confessions alone. City of Bremerton v. Corbett, 106 Wash.2d 569, 576, 723 P.2d 1135 (1986). Historically, courts have grounded the rule in judicial mistrust of confessions.

¶ 11 Here, the parties first dispute whether the corpus delicti rule is constitutionally mandated. We have previously recognized that Washington's corpus delicti rule, particularly the requirement that the State present independent, corroborative evidence that the offense occurred, is judicially created and not constitutionally mandated. In Corbett, we noted that "unlike the principles enunciated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),... the corpus delicti rule does not have a constitutional source; it is traceable to English law and was early established in America." Corbett, 106 Wash.2d at 576, 723 P.2d 1135 (emphasis added). Our reasoning in Corbett supports the State's contention that Washington's corpus delicti rule is not a Washington State constitutional standard, but it does not resolve whether the federal constitution mandates the corpus delicti rule.

¶ 12 In Opper, the United States Supreme Court held that while the State is not required to establish corpus delicti independently of a defendant's statement, it is required to show the defendant's statement is reliable before it can be admitted. 348 U.S. at 93-94, 75 S.Ct. 158. The Opper Court recognized the corroboration requirement was based on an expansion of the common law and general concepts of justice. Put otherwise, the federal corroboration rule is judicially created, not constitutionally mandated. Indeed, federal case law weighs heavily against finding that the federal corroboration rule is constitutionally based. See, e.g., United States v. Lopez-Alvarez, 970 F.2d 583 (9th Cir.), cert. denied, 506 U.S. 989, 113 S.Ct. 504, 121 L.Ed.2d 440 (1992).

¶ 13 Here, the Court of Appeals engaged in similar analysis, recognizing that the corroboration requirement of the rule is rooted in traditional notions of justice and has become a settled principle of the administration of criminal justice and concluding that the Washington corpus delicti rule and its federal counterpart were not constitutionally mandated. See Dow, 142 Wash.App. at 981-82, 176 P.3d 597. We agree with the Court of Appeals' analysis on this issue. We also agree with its analysis that the trial court erred in determining the statute is unconstitutional based on a finding that the Opper standard sets a constitutional minimum due process standard from which our legislature cannot depart. Instead, we read the statutory requirements as consistent with the standards required by the Opper holding and our cases.

¶ 14 In 2003, the legislature modified the corpus delicti rule when it enacted RCW 10.58.035. Where a rule is judicially created and/or emanates from the common law, the legislature is generally free to codify or eliminate such a rule to the extent it does not violate due process standards or other constitutional principles. As it pertains to this case, RCW 10.58.035, as written, does not implicate any constitutional issues of concern.

¶ 15 The corroboration rule enunciated in Opper signaled a departure from the previously more stringent federal corpus delicti rule. Generally, the corpus delicti rule prevents a defendant from being convicted based on his or her confession alone and requires independent evidence sufficient to establish every element of the crime charged. The Opper court stated the following when it enunciated the federal corroboration rule:

We think the better rule to be that the corroborative evidence need not be sufficient, independent of

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