U.S. v. Shunk

• Decision Date: 04 August 1989
• Docket Number: No. 88-1464,88-1464
• Citation: 881 F.2d 917
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Danny SHUNK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 917

881 F.2d 917

UNITED STATES of America, Plaintiff-Appellee, v. Danny SHUNK, Defendant-Appellant.

No. 88-1464.

United States Court of Appeals, Tenth Circuit.

Aug. 4, 1989.

Brent D. Ward, U.S. Atty., Stewart C. Walz, First Asst. U.S. Atty., Salt Lake City, Utah, for plaintiff-appellee.

Jay Fitt, Holladay, Utah, for defendant-appellant.

Before McKAY, TACHA and EBEL, Circuit Judges.

PER CURIAM.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.

On March 15, 1988, following a jury trial, the district court entered a judgment of conviction against the defendant, Danny Shunk, for his violation of the terms of 18 U.S.C. Sec. 922(g)(1), possession of a firearm by a convicted felon. The defendant appeals from the judgment. For the reasons set forth below, we affirm.

From February to December, 1987, the Salt Lake City, Utah Police Department conducted a "sting" operation out of a residence where a police officer posed as an individual who fenced stolen property. All transactions or meetings relevant to the facts of this case were videotaped. The defendant's brother, Timmy Shunk, sold a pistol to the undercover officer on October 16, 1987. At that time, Timmy stated that the pistol belonged to his brother, Ronnie. On November 2, 1987, Timmy returned to the officer and requested a loan. The discussion between Timmy and the officer also included statements to the effect that the defendant, Danny Shunk, had been the actual previous owner of the pistol and that the defendant was dissatisfied with the amount paid by the officer to Timmy. The officer gave Timmy the loan money he had been seeking on the condition that Timmy would arrange for the defendant to meet with the officer for the purpose of settling the dispute regarding the purchase price of the pistol. On November 5, 1987, the defendant and Timmy met with the officer. At this meeting the defendant made statements to the effect that he had owned the weapon for a month-long period prior to its sale. The defendant was indicted approximately one month later.

There is no question that the defendant's statements to the officer regarding ownership of the pistol should be characterized as admissions by a party opponent within the definition set forth in Fed.R.Evid. 801(d)(2)(A). As such, the defendant's statements were not hearsay. Id. The admissions formed the principal basis upon which the defendant's conviction rests. The parties stipulated to the fact of the defendant's prior felony convictions. No dispute exists as to the pistol's transport in interstate commerce.

On appeal, the defendant basically advances two arguments. The first is that the district court erred in admitting into evidence the videotape of the defendant's admissions prior to the government's establishment of the corpus delicti. (At trial, the jury was shown the videotape of the November 5 meeting prior to the introduction of any evidence concerning the November 2 meeting.) Under this rubric, the defendant claims that his admissions could not be admitted into evidence where the only corroborating evidence as to their trustworthiness is the officer's testimony regarding, and the videotape recordation of, the November 2 meeting between the officer and Timmy. The defendant does not challenge the veracity of the officer's account of the November 2 meeting, rather he attacks the truthfulness of Timmy's statements. The defendant characterizes Timmy's reference to the defendant's ownership of the pistol as inadmissible hearsay which cannot be introduced to corroborate the defendant's admissions. The Defendant's second argument is that even if the videotape of Timmy's November 2 discussion with the officer were admissible, it fails to sufficiently corroborate the defendant's admissions.

An analysis of every crime reveals three component parts--(1) the occurrence of the specific kind of injury or loss (as in homicide, a dead person; in arson, a burnt house; in larceny, property missing), (2) somebody's criminality as the source of the loss (in contrast, e.g., to an accident), and (3) the accused's identity as the doer of the crime. Wigmore on Evidence Sec. 2072 (Chadbourn rev. 1978); accord, McCormick on Evidence Sec. 145 (3d Ed.1984). The first two of these elements are what constitutes the concept of corpus delicti. Id.; accord, C. Torcia, 4 Wharton's Criminal Evidence Sec. 648 (14th Ed.1987). This court has defined the term corpus delicti, at least in the context of the crime of interstate transport of a stolen vehicle, to mean that "extrinsic evidence must establish the commission of the crime by somebody, or in other words, that the crime has in fact been committed." United States v. Charpentier, 438 F.2d 721, 725 n. 2 (10th Cir.1971) (emphasis in original) (adopting definition set forth in United States v. Washington, 69 F.Supp. 143, 146 (D.Md.1946)); accord, 29 Am.Jur.2d Evidence Sec. 149 (1967) ("[T]he prosecution must establish the actual commission, by someone, of the particular offense charged.") Identification of the accused as the individual who committed the crime is not part of the corpus delicti. Charpentier, 438 F.2d at 725.

The defendant relies upon a passage from Wharton's Criminal Evidence for the proposition that the videotape of his admissions could not be shown to the jury prior to the introduction of sufficient competent evidence establishing the corpus delicti of the crime.

The corpus delicti must be established by evidence independent of any confession or admission and, ordinarily, this must be done before the jury may even be apprised of such a confession or admission.

4 Wharton's Criminal Evidence at Sec. 648.

The defendant's argument is unavailing. The corpus delicti issue is not relevant to this case because we conclude that the concept of corpus delicti has no practical application to the crime of which the defendant was convicted.

"A defendant cannot be convicted solely on the basis of an uncorroborated extrajudicial statement." United States v. Wolfenbarger, 696 F.2d 750, 752 (10th Cir.1982) (citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)). As it presently exists, the corpus delicti concept has been properly characterized as a "version" of the corroboration requirement for the introduction of extrajudicial statements. See Millstein, Confession Corroboration in New York: A Replacement for the Corpus Delicti Rule, 46 Fordham L.Rev. 1205, 1211 (1978). The corroboration rule, as applied in federal courts today, was set forth in Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954). The rule requires "the government to introduce substantial evidence which would tend to establish the trustworthiness of the statement.... It is sufficient if the corroboration supports the essential facts admitted sufficiently to justify a jury inference of their truth." Id. at 93, 75 S.Ct. at 164. The Court differentiated the corroboration rule from the corpus delicti concept when it wrote "the corroborative evidence need not be sufficient, independent of the statements, to establish the corpus delicti." Id. The Court elaborated on this standard in Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192 (1954). It wrote: "[a]ll elements of the offense must be established by independent evidence or corroborated admissions, but one available mode of corroboration is for the independent evidence to bolster the confession itself and thereby prove the offense 'through' the statements of the accused." Id. at 156, 75 S.Ct. at 199.

The requirement that the prosecution demonstrate the existence of the corpus delicti of a crime is "a vestige of a time when brutal methods were commonly used to extract confessions, sometimes to crimes that had not been committed." United States v. Kerley, 838 F.2d 932, 939 (7th Cir.1988). Its purpose was to prevent the conviction of an individual on the basis of an unreliable confession. Id. at 940. Aside from its use in confession corroboration, the concept of corpus delicti is rarely used in modern law. 46 Fordham L.Rev. at 1212. The concept of corpus delicti has become largely an anachronism. In recent years, several authorities have suggested that the concept has outlived its usefulness. See McCormick on Evidence, at Sec. 145 and authorities cited therein. Indeed, the court in Kerley has stated that "the corpus delicti rule no longer exists in the federal system." 838 F.2d at 940.

The facts of the instant case do not require us to paint with as broad a brush as the court in Kerley. We do, however, recognize that the corpus delicti concept is not relevant to a crime such as the present one where there is no tangible injury or loss and the crime cannot be found to have been committed without reference to a specific defendant. See Ayling,...