State v. McGill

• Decision Date: 02 May 2014
• Docket Number: No. 109,789.,109,789.
• Citation: 328 P.3d 554,50 Kan.App.2d 208
• Parties: STATE of Kansas, Appellee, v. Joseph T. McGILL, Appellant.
• Court: Kansas Court of Appeals

50 Kan.App.2d 208

328 P.3d 554

STATE of Kansas, Appellee,

v.Joseph T. McGILL, Appellant.

No. 109,789.

Court of Appeals of Kansas.

May 2, 2014.

Syllabus by the Court

1. Under the corpus delicti rule, an accused may not be convicted of a crime solely on the basis of an uncorroborated confession.

2. The Kansas Supreme Court has adopted the general rule that an uncorroborated extrajudicial statement is insufficient to sustain a conviction. However, any material facts, including the corpus delicti itself, may be proved by direct testimony, by indirect or circumstantial evidence, or by a combination of both. No exclusive mode of proof of the corpus delicti is prescribed by law.

3. As a general rule, the corpus delicti rule requires corroborating evidence for all extrajudicial confessions, regardless of whether they are made to law enforcement or some other person.

4. As a general rule, a confession made to law enforcement officers cannot be corroborated by a second confession made to law enforcement officers for the purpose of satisfying the corpus delicti rule.

5. Evidence of a person's opportunity to commit the crime, standing alone, is insufficient to corroborate an alleged extrajudicial confession in order to establish the corpus delicti. However, evidence of a person's opportunity to commit the crime may be considered as one of multiple factors in order to corroborate an extrajudicial confession made by an accused.

Mark T. Schoenhofer, of Wichita, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before MALONE, C.J., ATCHESON and STEGALL, JJ.

MALONE, C.J.

Joseph T. McGill was convicted of two counts of aggravated indecent liberties with a child after the district court denied his motion to dismiss or, in the alternative, his motion in limine to exclude evidence of three extrajudicial confessions. McGill appeals, arguing that the district court erred in denying his pretrial motions because the State did not offer sufficient independent evidence to establish the corpus delicti of the crimes charged apart from his alleged extrajudicial confessions. For the reasons set forth herein, we affirm the district court's judgment.

Factual and Procedural Background

On May 25, 2012, the State charged McGill with two counts of aggravated indecent liberties with a child. The alleged victims were McGill's daughters, E.T.M. and L.A.M. Count I alleged that McGill engaged in lewd fondling or touching of E.T.M. in 2011, when E.T.M. was 1 year old. Count II alleged that McGill engaged in lewd fondling or touching of L.A.M. in 2005, when L.A.M. was 3 months old.

On June 7, 2012, the district court conducted a preliminary hearing. The State called McGill's wife, Jessica McGill, as a witness and she testified to the following account. When L.A.M. was born on August 11, 2005, Jessica was living with her parents and McGill was living in an apartment nearby. Jessica returned to work in late October 2005 when L.A.M. was about 3 months old. While Jessica was at work, McGill often cared for L.A.M. McGill usually watched L.A.M. at Jessica's parents' house, and it was not uncommon for him to do so by himself. When Jessica worked the 1 to 8 p.m. shift at her job, it was McGill's responsibility to feed and bathe L.A.M. and put her to bed.

McGill and Jessica married in August 2006. The couple had three more children; the youngest was E.T.M., born July 12, 2010. McGill and Jessica began living apart in March 2011, but McGill moved back in with Jessica and the children shortly after E.T.M.'s first birthday on July 12, 2011. Both McGill and Jessica were working outside the home at that time. McGill typically got off work at 3:30 p.m. and would pick up the children. On days when Jessica worked the 1 to 8 p.m. shift, McGill would be alone with the children from the time he picked them up when he got off work at 3:30 p.m. until the time Jessica arrived home around 8:15 or 8:30 p.m. McGill was responsible for feeding the children, bathing them, and making sure they were ready for bed. McGill showered at the couple's house, and it was not unusual for him to shower with the children.

On May 7, 2012, Jessica was at work and scheduled to stay until 8 p.m. McGill called Jessica and said that she needed to leave work and meet him at his therapist's office because he had something important he needed to tell her. Jessica could not leave work, so she told McGill she would meet him at home at 8 p.m. and he could tell her what he needed to tell her. Jessica called McGill a short time later to ask him what was going on, but McGill said he could not tell her over the phone “because it would devastate [her].” In a later phone call that day, McGill told Jessica that if he told her what he had done, she would hate him forever and would not want to see him or be with him. McGill also said he would be moving out of the couple's house.

Jessica called McGill on her way home from work and he agreed to tell her what happened if she would not tell anyone else. When Jessica arrived at the couple's house, McGill came outside and sat in the vehicle with her. Inside the car, McGill told Jessica that when L.A.M. was about 3 months old, he had put his penis in her mouth and had her suck on it. McGill also said that when E.T.M. was about 1 year old, he was taking a shower with her and rubbed his penis against her vagina.

Jessica was the only witness at the preliminary hearing. At the conclusion of the hearing, the district court bound McGill over for trial. McGill entered a plea of not guilty. On June 11, 2012, McGill filed a motion to dismiss or, in the alternative, a motion in limine to exclude the evidence of his alleged confessions. McGill asked the district court to dismiss the case pursuant to the common-law corpus delicti rule that an accused may not be convicted of a crime based solely on an uncorroborated confession. In the alternative, McGill asked for an order excluding any evidence of his alleged confessions.

On August 17, 2012, the district court conducted a hearing on the pretrial motions filed by McGill, including the motion to dismiss/motion in limine. The State called Bradley Mills, owner of Mills Family Counseling, as its first witness and he testified to the following account. On May 7, 2012, McGill came to Mills' office for his second scheduled session of a court-ordered sex offender treatment program arising from an unrelated case. Mills had arranged for McGill to take a polygraph examination earlier that day, and McGill arrived for his session after completing part of the paperwork for the polygraph examination. When McGill came into Mills' office, he was having what Mills characterized as an emotional breakdown. McGill was tearful and pacing the floor. He would sit down, stand up, and then pace some more. McGill said things like, “I'm in trouble” and “I need help.” This behavior went on for about 35–40 minutes.

McGill was struggling to maintain any kind of composure and acted as though something he had revealed during the polygraph test was going to be a problem for him—he was afraid he was going to receive additional charges. As their scheduled session neared its end, Mills told McGill that he was going to receive a copy of McGill's polygraph test, so McGill might as well tell him what he was so worried about. McGill told Mills that he had put his penis in his child's mouth and fondled her 6 years ago. Then McGill said that he had put his penis in his other child's mouth about a year ago. After McGill's session ended, Mills called SRS and reported suspected abuse.

The State then called its second witness, Donald L. Williams, owner of a business that conducts private investigations and polygraph tests, who testified to the following account. McGill was referred to Williams to complete a polygraph examination and came to Williams' office for an appointment in early May 2012. As was his standard procedure before administering a polygraph examination, Williams asked McGill to fill out a questionnaire consisting of 10 pages of information for him to self-report. In the questionnaire, McGill wrote that he had a sexual encounter with “Theresa” when he was 27 years old and she was 1 year old. Theresa is E.T.M.'s middle name. In response to yes/no questions, McGill answered that he had touched her vagina, bathed or showered with her, rubbed his penis on her, and rubbed his penis on her vagina. He also answered that she had touched his penis.

Also in the questionnaire, McGill detailed a sexual encounter with “Anne” when he was 20 years old and she was 3 months old. Anne is L.A.M.'s middle name. McGill answered that he had bathed or showered with her, that she had licked or sucked his penis, and that her mouth had been on his private parts. McGill later refused to take the scheduled polygraph examination. Williams faxed the contents of the questionnaire to McGill's probation officer.

By agreement of the parties, the State noted that the district court could also consider Jessica's preliminary hearing testimony as part of the evidence on the motion to dismiss/motion in limine. No other evidence was presented. At the conclusion of the hearing, the judge took the matter under advisement.

On September 21, 2012, the parties reconvened before the district court for its ruling. The district court denied McGill's motion to dismiss/motion in limine, stating:

“My ruling is as follows: Defendant's motion to dismiss is denied. I don't believe a court-ordered dismissal is an appropriate remedy for what the defendant is requesting in this case.

“The question and issues raised by the defense I think essentially are a sufficiency of evidence issue. And I just don't think that a motion or an order dismissing the case is an appropriate remedy here.

“As for the motion in limine in which the defendant asks for an order to suppress or to find inadmissible the defendant's...