State v. Plastow , 873 N.W.2d 222 ( 2015 )

#27374-a-SLZ
2015 S.D. 100
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellant,
v.
ALVIN PLASTOW, Defendant and Appellee.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
****
THE HONORABLE ROBIN J. HOUWMAN
Judge
****
MARTY J. JACKLEY
Attorney General
JARED C. TIDEMANN
PAUL S. SWEDLUND
Assistant Attorneys General
Pierre, South Dakota
and
AARON F. MCGOWAN
Minnehaha County State’s Attorney
SARA E. SNOW
Minnehaha County Deputy State’s Attorney
Sioux Falls, South Dakota Attorneys for plaintiff
and appellant.
LYNDSAY E. DEMATTEO
Minnehaha County Public Advocate’s Office
Sioux Falls, South Dakota Attorneys for defendant
and appellee.
****
ARGUED ON
OCTOBER 6, 2015
OPINION FILED 12/23/15
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ZINTER, Justice
[¶1.] The State, by way of intermediate appeal, challenges the circuit court’s
suppression of Alvin Plastow’s admission that he raped a three-year old girl. The
circuit court suppressed in accordance with our cases holding that a conviction
cannot stand on an admission alone: the admission must be corroborated with
independent evidence establishing the corpus delicti of the offense.1 Many state
and federal courts have adopted a more flexible rule. Instead of requiring evidence
of the corpus delicti, those courts allow evidence of the admission’s trustworthiness
to corroborate the admission and establish guilt. For the reasons stated in this
opinion, we adopt the trustworthiness standard as an alternative method of
corroborating admissions. However, under Supreme Court precedent, we apply this
change prospectively. We therefore affirm.
Facts and Procedural History
[¶2.] Alvin Plastow spent fifteen years in prison after pleading guilty to
raping a five-year-old African American female (N.H.). After his release from
prison, Plastow lived with his girlfriend, Elizabeth Paige (mother of N.H.), Teerra
Raglan, and Raglan’s three-year-old African American daughter (S.G.). S.G.’s
father, Michael Grace, frequently visited the home.
[¶3.] At some point, Grace observed Plastow stroking S.G.’s face while S.G.
was sitting on Plastow’s lap. Aware of Plastow’s criminal history, Grace became
suspicious and later telephoned Plastow, asking him if he had ever inappropriately
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1. The corroboration requirement for admissions applies with equal force to
confessions. See State v. Thompson, 1997 S.D. 15, ¶ 35, 560 N.W.2d 535, 543.
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touched S.G. Plastow admitted to putting his hand down S.G.’s pants, but claimed
he did not penetrate her. After the telephone call, Grace asked S.G. where Plastow
touched her, she pointed to her genitals, buttocks, and face.
[¶4.] Grace reported these occurrences to the police. During a subsequent
investigation, in a police officer’s presence, Grace asked S.G. where Plastow had
touched her. S.G. pointed to her genitals. At another point, S.G. approached the
police officer and grabbed her genitalia, saying: “He touched me down here.”
[¶5.] A detective conducted a follow-up interview. During the interview,
Plastow admitted that he was attracted to children, especially black females. He
also admitted that after getting out of prison, he struggled with thoughts of
children. Plastow specifically admitted raping S.G. on two occasions, once when he
was helping her in the bathroom and once in a bedroom. Regarding the bathroom
incident, Plastow indicated that he attained an erection while placing his index
finger in between S.G.’s vaginal lips. He also indicated that he masturbated while
thinking of this incident. Regarding the bedroom incident, Plastow indicated that
he ran his finger in between S.G.’s vaginal lips, but denied “reaching S.G.’s hole.”
Plastow also admitted to taking a picture of S.G.’s partially naked body with his cell
phone during the bedroom incident. Plastow saved the picture and admitted to
masturbating while viewing it. Plastow indicated that the picture would be on his
phone.
[¶6.] Grace had previously given Plastow’s phone to the police. They
searched the phone and found a picture of S.G. in “Dora the Explorer” pajamas with
pink polka dots. Another contemporaneously taken picture was of a prepubescent
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female’s partially naked body from the waist to mid-thigh with her pants pulled
down. The visible portions of the pants resembled S.G.’s pink polka dot pajamas.
[¶7.] S.G. gave a statement about these events to a forensic interviewer at
Child’s Voice, a child advocacy center. S.G. confirmed the inappropriate touching;
however, a corresponding physical examination could neither confirm nor refute
that a rape occurred.
[¶8.] The State charged Plastow with two counts of first-degree rape and
two counts of possession of child pornography. Plastow filed a pre-trial motion to
sever the rape and pornography counts. He also moved to suppress his admissions,
arguing the State could not present independent corroborating evidence showing
the corpus delicti of a rape.
[¶9.] At an evidentiary hearing on the motion to suppress, the State
indicated that S.G. would not testify; no representative from Child’s Voice would
testify; and Grace would not testify. The State indicated that other than the
photograph, it had no independent evidence corroborating Plastow’s admissions.
The circuit court severed the charges and suppressed Plastow’s admissions. The
court reasoned that the photograph alone did not establish the corpus delicti of
rape. The State appeals raising two issues:
(1) Whether the circuit court relied on an overly strict
application of the corpus delicti rule in suppressing
Plastow’s admissions.
(2) Whether the corpus delicti rule should be reformed or
abandoned in South Dakota.
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Decision
[¶10.] The circuit court ruled that State v. Thompson controlled and that
under Thompson, suppression was required because the State could not show the
corpus delicti of rape independent of Plastow’s admissions. 1997 S.D. 15, ¶ 36, 560
N.W. 2d. 535, 543. The State argues that the circuit court misapplied the corpus
delicti rule because, in conclusion of law 7, it concluded: “The State has not provided
and will not present at trial independent evidence, outside of Plastow’s admissions,
for each element of the crime of rape.” (Emphasis added.) The State asserts that it
need not show independent evidence of each element of the crime to admit an
admission. We agree.
[¶11.] The corpus delicti rule is generally applied in one of two situations: (1)
challenges to the admissibility of an admission, or (2) challenges to the sufficiency of
the evidence. Compare State v. Best, 89 S.D. 227, 235, 232 N.W.2d 447, 452 (1975)
(involving a challenge to the admission of a defendant’s statement before proving
the corpus delicti), and State v. Lowther, 434 N.W.2d 747, 754 (S.D. 1989) (involving
a claim that the state failed to set forth sufficient corroborative evidence before it
introduced a defendant’s admissions), with State v. Bates, 76 S.D. 23, 28, 71 N.W.2d
641, 644 (1955) (involving the claim that there was insufficient evidence to justify
submission of the case to the jury), State v. Garza, 337 N.W.2d 823, 824 (S.D. 1983)
(involving the claim that there was insufficient evidence of the corpus delicti to
corroborate appellant’s confession and sustain the conviction), and Thompson, 1997
S.D. 15, ¶ 34, 560 N.W.2d at 542 (stating the “question ultimately is a challenge to
the sufficiency of the evidence.”).
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[¶12.] This is an admissibility case, and in admissibility cases, the
admissibility of an extrajudicial admission is conditioned on its corroboration by
evidence independent of the defendant’s extrajudicial statements. Best, 89 S.D. at
235, 232 N.W.2d at 452. The corroborative evidence need only show the corpus
delicti; i.e., evidence establishing “(1) the fact of an injury or loss, and (2) the fact of
someone’s criminal responsibility for the injury or loss.” Id. Therefore, under our
corpus delicti rule, the admissibility of Plastow’s statements was not conditioned on
the State’s production of independent evidence of each element of the offense
charged against Plastow. The State need only have shown that S.G. was raped by
someone. The circuit court’s conclusion of law 7 incorrectly stated the rule.2
[¶13.] The State further argues that had the circuit court applied the correct
rule, it would have admitted Plastow’s admissions. The State contends that the
independent evidence in this case established a reasonable probability that S.G.
was raped. Plastow, however, argues that the State failed to identify sufficient
independent evidence that established the corpus delicti of rape. Plastow contends
that standing alone, the picture appearing to be S.G.’s genitalia does not raise a
reasonable inference that she was raped.
[¶14.] Best sets forth the quantum of evidence required to admit extrajudicial
statements. 89 S.D. at 236, 232 N.W.2d at 453.
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2. The circuit court’s conclusion of law 7 was based on Thompson, 1997 S.D. 15,
560 N.W.2d 535. As previously indicated, Thompson was a sufficiency of the
evidence case. Id. ¶ 34, 560 N.W.2d at 542. Because it was a sufficiency of
the evidence case, Thompson was not only concerned with the corpus delicti,
but also the sufficiency of the evidence to support all elements of the offense.
Id. ¶¶ 36-37, 560 N.W.2d at 543.
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A prima facie showing of the corpus delicti of the crime charged
must be made before a defendant’s extrajudicial statements,
admissions or confessions may be received in evidence (citations
omitted). To establish the corpus delicti . . . , it [is] only
necessary for the [State] to show a reasonable probability the
criminal act of another caused [the crime charged]. The corpus
delicti may be established by circumstantial evidence, and by
the reasonable inferences to be drawn from such evidence
(citations omitted). While slight evidence is sufficient to
establish the corpus delicti, it must be proved entirely
independent of and without considering the defendant’s
extrajudicial statements (citations omitted).
Id. (quoting People v. Cantrell, 504 P.2d 1256, 1260 (Cal. 1973)).3 In this case, the
State indicated that Grace, S.G., and the forensic interviewer would not testify. The
State further indicated at the motions hearing that the only evidence it had to
corroborate the crime of rape was the photograph that appeared to be S.G., naked
from the waist down. We agree with the circuit court that the photograph, standing
alone, did not create a reasonable inference that S.G. was raped.4 Therefore, under
our current caselaw, the circuit court properly suppressed Plastow’s admissions.
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3. In sufficiency of the evidence cases, the admission may be considered with
the independent evidence. There must be “such extrinsic corroborating or
supplemental circumstances as will, when taken in connection with the
admissions, establish beyond a reasonable doubt that the crime was in fact
committed by someone.” Bates, 76 S.D. 23, 28, 232 N.W.2d 641, 644 (1955).
4. The State relies on a number of decisions from other states applying their
formulations of the corpus delicti rule. We do not find those cases supportive
because in each case, the prosecution introduced admissible evidence that
generated a reasonable inference that the crime had occurred. See People v.
Stevens, 544 N.E.2d 1208, 1218 (Ill. 1989) (inferring that a rape occurred
from a statement by the victim that she had been raped along with evidence
of her torn underwear); People v. Bounds, 662 N.E.2d 1168, 1185 (Ill. 1995)
(concluding that sexual assault could reasonably be inferred from evidence of
a broom handle with feces found near a victim’s half naked body together
with evidence that victim’s anus was dilated); People v. Lara, 983 N.E.2d 959,
974 (Ill. 2013) (using victim testimony and victim’s hearsay report to
(continued . . .)
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[¶15.] This case highlights the injustice that may arise under our corpus
delicti rule. S.G. was only three and one-half years old and unable to testify, she
suffered no tangible physical injury, the corroborating witnesses were apparently
unavailable at the time of trial, and Plastow did not challenge the voluntariness or
truthfulness of his admissions. The State urges us to follow the lead of the Supreme
Court and many other states that have adopted a more flexible rule in the interest
of contemporary justice: a rule that focuses on the trustworthiness of the admission.
[¶16.] In 1954, the Supreme Court rejected the traditional corpus delicti rule
in favor of a “trustworthiness” standard to determine whether admissions were
admissible and sufficient to support a conviction in criminal cases. See Opper v.
United States, 348 U.S. 84, 75 S. Ct. 158, 99 L. Ed. 101 (1954); Smith v. United
States, 348 U.S. 147, 75 S. Ct. 194, 99 L. Ed. 192 (1954). Opper not only considered
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(. . . continued)
establish the corpus delicti of sexual assault); People v. Robbins, 755 P.2d 355
(Cal. 1988) (inferring the crime of lewd conduct with a child based on
evidence of defendant’s other acts, defendant’s diagnosis as a pedophile,
witness identification of defendant driving a motorcycle with victim on back,
and the absence of clothes on the victim’s dead body); People v. Jones, 949
P.2d 890, 903 (Cal. 1998) (inferring oral copulation from: bruises on victims
thighs, knees, legs, and perineal area; injuries on victim’s hands; victim was
not wearing underpants, a brassiere, or shoes; results from the sexual assault
kit revealing the presence of semen in victim’s vagina, on her external
genitalia, and in her rectal area; and expert testimony that negative test
results were not inconsistent with oral copulation because the mouth’s
natural rinsing processes eliminates semen.); In re W.B. II, 2009 WL 961500
at *11 (Ohio Ct. App.) (inferring rape from child victim testimony). State v.
Shannon, 2004 WL 637848 at *7 (Ohio Ct. App.) (inferring unlawful sexual
contact from victim’s testimony); State v. Clark, 666 N.E.2d 308, 311 (Ohio
Ct. App. 1995) (inferring rape from testimony of four month old’s mother that
she heard infant screaming before she entered the home to find infant-victim
face down on defendant’s lap while defendant had an erect penis and
defendant apologized to mother and claimed he was seeking help).
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“the extent of the corroboration of admissions necessary as a matter of law for a
judgment of conviction,” it also discussed the different types of evidence courts allow
to corroborate an admission. 348 U.S. at 92, 75 S. Ct. at 164. The Court
acknowledged that some jurisdictions required corroborative evidence to touch the
corpus delicti of the crime charged, while other courts found that “proof of any
corroborating circumstances is adequate which goes to fortify the truth of the
confession or tends to prove facts embraced in the confession.” Id. at 91-92. The
Court rejected the former corroboration rule; the rule currently applied in South
Dakota. Id. at 93. The Court held that the better rule is “to require the
Government to introduce substantial independent evidence which would tend to
establish the trustworthiness of the statement.” Id. The independent evidence is
sufficient if it “supports the essential facts admitted sufficiently to justify a jury
inference of their truth.” Id. The Court found this is the better rule because the
independent evidence serves two purposes: “It tends to make the admission reliable,
thus corroborating it while also establishing independently the other necessary
elements of the offense.” Id. (citing Smith, 348 U.S. 147, 75 S. Ct. 194). In a
companion case, the Court elaborated on the application of the trustworthiness rule:
“The quantum of corroboration necessary to substantiate the existence of the crime
charged” is that “[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.” Smith, 348 U.S. at 156, 75 S. Ct.
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at 199. The federal courts of appeal have subsequently applied the Opper-Smith
trustworthiness rule in cases involving admissibility.5
[¶17.] We agree with the many courts that have concluded the corpus delicti
rule is outdated and may serve to obstruct justice in certain circumstances. “The
corpus delicti rule was first developed more than three hundred years ago in
England to prevent the conviction of those who confessed to non-existent crimes as a
result of coercion or mental illness.” State v. Goulding, 2011 S.D. 25, ¶ 13, 799
N.W.2d 412, 417 (quoting David A. Moran, In Defense of the Corpus Delicti Rule, 64
Ohio St. L.J. 817, 817 (2003)). Since that time, newly recognized constitutional
rights and rules of evidence have provided protections that address the concerns
that gave rise to the rule. Thus, many courts and scholars now agree: the corpus
delicti rule may have outlived its usefulness.6 Although the concerns underlying
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5. See United States v. Miller, 874 F.2d 1255, 1279-80 (9th Cir. 1989) (applying
Opper and finding “sufficient evidence exists here to support the district
court’s admission of the evidence and to support the denial of the motion for
acquittal.”); United States v. Davanzo, 699 F.2d 1097, 1100-01 (11th Cir.
1983) (“‘It is well settled, however, that there need not be corroborative
evidence proving every element of the offense before an admission can be
received in evidence.’ All that is necessary is for ‘the government to introduce
substantial independent evidence which would tend to establish the
trustworthiness of the statement.’”) (quoting Opper, 348 U.S. at 93, 75 S. Ct.
at 164); United States v. Manamela, 463 F. App’x 127, 132 (3d Cir. 2012)
(“Under the corpus delicti rule, before the government can introduce a
defendant’s confession, it must introduce ‘substantial independent evidence
which would tend to establish the trustworthiness of the statement.’”)
(quoting Opper, 348 U.S. at 93, 75 S. Ct. at 158)).
6. See Jacinth v. State, 593 P.2d 263 (Alaska 1979); People v. LaRosa, 293 P.3d
567 (Colo. 2013); State v. Hafford, 746 A.2d 150 (Conn. 2000); Harrison v.
United States, 281 A.2d 222 (D.C. 1971); State v. Yoshida, 354 P.2d 986 (Haw.
1960); State v. McGill, 328 P.3d 554 (Ct. App. Kan. 2014); State v. Heiges, 806
N.W.2d 1 (Minn. 2011); State v. True, 316 N.W.2d 623 (Neb. 1982); State v.
(continued . . .)
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the rule remain, the limitations imposed by the traditional rule are no longer
necessary to achieve the valid purposes. 1 George E. Dix et al., McCormick On
Evidence § 145 (Kenneth S. Broun ed., 7th ed. 2013) (“Widespread agreement
remains that the need to assure accuracy of convictions remains at least a major
basis for the requirement.”).
[¶18.] For example, current Fifth and Sixth Amendment jurisprudence
provides some protection against coerced and false confessions. Police officers must
now read suspects their rights before interrogating them. Miranda v. Arizona, 384
U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694 (1966). If suspects request an
attorney, the police must stop all questioning. Edwards v. Arizona, 451 U.S. 477,
484-85, 101 S. Ct. 1880, 1885, 68 L. Ed. 2d 378 (1981). And, confessions are subject
to extensive voluntariness inquiries. See Schneckloth v. Bustamonte, 412 U.S. 218,
224, 93 S. Ct. 2041, 2046, 36 L. Ed. 2d 854 (1973). Therefore, in light of the
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(. . . continued)
Zysk, 465 A.2d 480 (N.H. 1983); State v. Reddish, 859 A.2d 1173 (N.J. 2004);
State v. Weisser, 150 P.3d 1043 (Ct. App. N.M. 2006) (adopting a modified
trustworthiness standard that requires corroboration demonstrating
trustworthiness plus evidence of the harm; if there is no tangible injury, then
the corroboration must link the defendant to the crime); State v. Parker, 337
S.E.2d 487 (N.C. 1985) (adopting a modified version of the trustworthiness
standard requiring strong corroboration of essential facts in the defendant’s
confession when there is no independent evidence of injury); Stout v. State,
693 P.2d 617 (Okla. Crim. App. 1984); State v. Osborne, 516 S.E.2d 201 (S.C.
1999); State v. Bishop, 431 S.W.3d 22 (Tenn. 2014) (adopting a modified
trustworthiness standard that requires corroboration demonstrating
trustworthiness plus evidence of the harm; if there is no tangible injury, then
the corroboration must link the defendant to the crime); State v. Mauchley, 67
P.3d 477 (Utah 2003); Holt v. State, 117 N.W.2d 626 (Wis. 1962); Simmers v.
State, 943 P.2d 1189 (Wyo. 1997); See Thomas A. Mullen, Rule Without
Reason: Requiring Independent Proof of the Corpus Delicti As A Condition of
Admitting an Extrajudicial Confession, 27 U.S.F. L. Rev. 385 (1993) (urging
abolition of the corpus delicti rule).
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development of constitutional protections intended to minimize involuntary and
false confessions, the utility of the corpus delicti rule is less apparent. As one
prominent treatise stated, the corroboration rule is often an “obstruction to the
course of justice.” 7 John Henry Wigmore, Evidence § 2070, p.510 (Chadbourn rev.
1978).
[¶19.] The corpus delicti rule may also unjustly benefit those who perpetrate
crimes causing no tangible injury and crimes involving the most vulnerable victims.
See Smith, 348 U.S. at 154, 75 S. Ct. at 198; LaRosa, 293 P.3d at 575. As the
Supreme Court explained, the corpus delicti of some crimes, e.g., tax evasion,
cannot be isolated from the identity of the perpetrator. Smith, 348 U.S. at 154-55,
75 S. Ct. at 198. Thus, the traditional rule can exclude admissions in those cases.
In contrast, the corpus delicti in violent crimes is easily isolated, and therefore the
government can more readily admit the defendant’s admission. Id. But a
defendant in a tax evasion case should not have a greater protection than a
defendant in a homicide prosecution. See id. Likewise, the traditional rule operates
disproportionately in cases involving crimes against minors and the mentally
infirm. See LaRosa, 293 P.3d at 575 (stating that the corpus delicti rule does more
harm than good when it bars the convictions in cases involving society’s “most
vulnerable victims, such as infants, young children, and the mentally infirm . . . .”).
We therefore agree that the rule may operate to obstruct justice. It is “too rigid in
its approach, too narrow in its application, and too capable of working injustice in
cases” like this. See id.
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[¶20.] The corpus delicti rule is a product of the common law: it is not
constitutionally required,7 it is not required by statute,8 and it is not required by
the rules of evidence. In 1973, we recognized the two methods of corroboration
discussed in Opper. See State v. Aschmeller, 87 S.D. 367, 375, 209 N.W.2d 369, 373
(1973). Neither method was adopted because the corroborative evidence was
sufficient under either rule. Id. at 375, 209 N.W.2d at 373-74. Two years later, we
noted that the traditional formulation requiring evidence of the corpus delicti was
the majority rule, and we applied it to an admission. See Best, 89 S.D. at 235, 232
N.W.2d at 452. Ever since, we have restated that rule without reconsidering the
basis for its continued application. In light of the considerations presented today,
we agree that the traditional rule has outlived its usefulness, and we now follow
numerous other jurisdictions in adopting a more modern approach. We adopt the
trustworthiness rule announced in Opper and Smith. Thus, in cases where the
defense has moved to suppress an admission before it has been admitted into
evidence, the court may admit the statement upon the State’s showing of
“substantial independent evidence which would tend to establish the
trustworthiness of the statement.” Opper, 348 U.S. at 93, 75 S. Ct. at 164.
Alternatively, the State may continue to corroborate admissions under the corpus
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7. See Dix et al., supra ¶ 18 (stating “Constitutional considerations, however,
most likely do not demand it.”).
8. SDCL 22-16-2 does provide that: “No person may be convicted of murder or
manslaughter, or of aiding suicide, unless the death of the person alleged to
have been killed, and the fact of the killing by the accused are each
established as independent facts beyond a reasonable doubt.” The statute
does not govern the admissibility of a defendant’s admissions.
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delicti rule. And in sufficiency of the evidence cases, a defendant may not be
convicted unless the defendant’s corroborated confession or admission, independent
evidence of the crime, or a combination thereof establishes all elements of the crime
beyond a reasonable doubt. See Smith, 348 U.S. at 156, 75 S. Ct. at 199.
[¶21.] The remaining question is whether the trustworthiness rule may be
applied in Plastow’s case. Plastow argues that he did not have “fair warning” of
today’s change. Therefore, he contends that applying the new corroboration rule in
his case would deprive him of due process. The State argues that the Ex Post Facto
Clause does not prohibit such procedural changes to “rules of evidence.”
[¶22.] Although the specific protections recognized in the Ex Post Facto
Clause are not controlling in retroactive judicial decision-making,9 the “limitations
on ex post facto judicial decision making are inherent in the notion of due process.”
See Rogers, 532 U.S. at 456, 121 S. Ct. at 1697. The due process question is
whether our common law application of the new trustworthiness rule would violate
Plastow’s right to “fair warning.” See id. at 457, 121 S. Ct. at 1698. The “judicial
alteration of a common law doctrine of criminal law violates the principle of fair
warning, and hence must not be given retroactive effect, only where it is
‘unexpected and indefensible by reference to the law which had been expressed
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9. The Ex Post Facto Clause “is a limitation upon the powers of the Legislature,
and does not of its own force apply to the Judicial Branch of government.”
Rogers v. Tennessee, 532 U.S. 451, 456, 121 S. Ct. 1693, 1697, 149 L. Ed. 2d
697 (2001) (quoting Marks v. United States, 430 U.S. 188, 191, 97 S. Ct. 990,
992, 51 L. Ed. 2d 260 (1977)) (internal quotation marks omitted). Rogers
makes clear that the specific protections of the Ex Post Facto Clause are not
incorporated “jot-for-jot” into the due process limitations. Id. at 459, 121 S.
Ct. at 1699.
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prior to the conduct in issue.’” Id. at 462 (quoting Bouie v. City of Columbia, 378
U.S. 347, 354, 84 S. Ct. 1697, 1703, 12 L. Ed. 2d 894 (1964)).
[¶23.] In Rogers, the Supreme Court found that the Tennessee Supreme
Court’s abolition of the common law “year and a day” rule10 in homicide cases was
not “unexpected and indefensible by reference to the law which had been expressed
prior to the conduct in issue.” Id. The Court concluded that abolition of that rule
was not unexpected and indefensible because it was widely viewed as an outdated
relic of the common law; medical and other sciences had rendered the rule obsolete;
a vast majority of jurisdictions that had recently addressed the rule had abolished
it; and, most importantly, at the time of Roger’s conduct, the rule had only the
“most tenuous foothold” as part of Tennessee’s criminal law. Id. at 462-64, 121 S.
Ct. at 1700-01. Indeed, the rule had not been codified and the rule had never been
the basis for a decision in a similar prosecution in Tennessee. Id.
[¶24.] Here, retroactive application of the trustworthiness rule would be
unexpected and indefensible by reference to the law that has been expressed in this
jurisdiction prior to the conduct in issue. The corpus delicti rule has been
consistently applied to admissions by this court since 1975,11 a consideration the
Supreme Court found most important in Rogers. See Rogers, 532 U.S. at 464, 121 S.
Ct. at 1701. Indeed, it was the basis for the reversal of a conviction in Thompson.
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10. “At common law, the year and a day rule provided that no defendant could be
convicted of murder unless his victim had died by the defendant’s act within
a year and a day of the act.” Rogers, 532 U.S. at 453, 121 S. Ct. at 1695.
11. See Best, 89 S.D. at 235, 232 N.W.2d at 452; Lowther, 434 N.W.2d at 754;
Bates, 76 S.D. 23, 71 N.W.2d 641; Garza, 337 N.W.2d 823; Thompson, 1997
S.D. 15, 560 N.W.2d 535.
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1997 S.D. 15, ¶ 39, 560 N.W.2d at 544. Additionally, our common-law rule’s
statutory counterpart remains in effect in homicide cases. See SDCL 22-16-2.12
Therefore, unlike the abrogation of the year and a day rule considered in Rogers,
adoption of the trustworthiness rule would “mark[] [an] unpredict[ed] departure
from prior precedent” in that it is a rule that has been “relied upon as a ground of
[many] decision[s] in” this state. 532 U.S. at 467, 121 S. Ct. at 1703.
[¶25.] Moreover, as previously mentioned, although the Ex Post Facto Clause
is not applicable in cases involving judicial decision-making, the “limitations on ex
post facto judicial decision making are inherent in the notion of due process.” Id. at
456, 121 S. Ct. at 1697. Therefore, we find helpful a Supreme Court ex post facto
case discussing the principle of due process “fair warning.” See Carmell v. Texas,
529 U.S. 513, 531 n.21, 120 S. Ct. 1620, 1632, 146 L. Ed. 2d 577 (2000) (noting that
one of the concerns of the Ex Post Facto Clause is that legislative enactments give
“fair warning of their effect”).
[¶26.] Carmell involved repeal of a statute that is analogous to the corpus
delicti rule. Before its repeal, the Texas statutory rule required corroboration of a
rape victim’s testimony. See id. at 516, 120 S. Ct. at 1624. The Supreme Court held
that Carmell’s convictions on the counts “not corroborated by other evidence” could
not be sustained under the Ex Post Facto Clause. Id. at 552, 120 S. Ct. at 1643.
Carmell held that reducing the quantum of corroborating evidence required in a
criminal case violated a “fundamental fairness interest, even apart from any claim
of reliance or notice, in having the government abide by the rules of law it
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12. See supra note 8.
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establishes to govern the circumstances under which it can deprive a person of his
or her liberty or life.” Id. at 533, 120 S. Ct. at 1633. Like Carmell, retroactive
application of the trustworthiness rule would implicate fundamental fairness
because the new rule changes the required corroborating evidence such that
Plastow’s previously inadmissible admission would now likely be admissible.
[¶27.] Following Rogers and Carmell, we conclude that the retroactive
application of the trustworthiness rule would violate Plastow’s due process right to
fair warning. We affirm and remand for further proceedings under the old rule
should the availability of corroborating evidence have changed while this case has
been on appeal.
[¶28.] GILBERTSON, Chief Justice, and SEVERSON, WILBUR, and KERN,
Justices, concur.
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