D. Warren Justice
the court is a pretrial motion to dismiss the indictment
against defendant Burton Hagar based on what the defense
contends is the State's inability to establish the corpus
delicti of a crime of homicide.
ordinarily a corpus delicti issue would not be the subject of
a pretrial motion, the unusual procedure employed in this
case results from a contingent plea agreement between counsel
for the State and Hagar, under which the parties have agreed
to resolve the case with a manslaughter plea and a specified
sentence in the event that Hagar does not prevail on his
corpus delicti argument either before this court or on
appeal. Pursuant to the terms of the contingent
plea agreement, Hagar has reserved his ability to pursue his
corpus delicti challenge and the State has allowed the issue
to be litigated at a pretrial hearing and, if the trial
court's ruling is adverse to Hagar, to be appealed after
a conditional plea. This is a similar procedure to the one
employed, also with the State's agreement, in State
v. Reed, 676 A.2d 479 (Me. 1996).
hearing on the corpus delicti issue was held on April 10,
2018. The parties thereafter filed memoranda of law, and the
court has now reviewed the arguments of the parties and the
evidence submitted at the healing.
corpus delicti doctrine requires the State to present
evidence, independent of incriminating statements made by an
accused, sufficient to create a substantial belief that the
crime alleged was committed by somebody. State v.
Poulin, 2016 ME 40 ¶ 8, 134 A.3d 886. The purpose
of the rule is to prevent convictions based solely on
inculpatory statements and convictions when no crime has
actually occurred. Id
Court has stated that the quantum of evidence that the State
must present to meet the corpus delicti standard is
"low," Poulin, 2016 ME 40 ¶ 12,
quoting State v. Fundalewicz, 2012 ME 107 ¶ 9,
49 A.3d 1277. Specifically, the corpus delicti standard is
akin to the probable cause standard and can be satisfied by
"less than a preponderance of the evidence."
Poulin, 2016 ME 40 ¶ 12; Fundalewicz,
2012 ME 107 ¶ 9; State v. Snow, 438 A.2d 485,
487 (Me. 1981) (quotations omitted). A finding that the
corpus delicti standard has been met can be based on
circumstantial evidence and reasonable inference.
Fundalewicz, 2012 ME 107 ¶ 11. Moreover, corpus
delicti findings are preliminary determinations that do not
necessarily need to be based on admissible evidence.
M.R.Evid. 101(b)(1), 104(a); Poulin, 2016 ME 40
¶ 10; Snow, 438 A.2d at 487.
corpus delicti rule has been criticized as inadequate
(because it does not protect against false confessions to
crimes that can be proven to have taken place), as
unnecessary (in light of other protections against false
confessions), and because it has a potential to obstruct
justice in cases involving very young victims - where
children are too young to testify or where causes of injury
or death cannot be determined. See, e.g., People v.
LaRosa, 2012 CO 2 ¶¶ 25-27, 293 P.3d 567
(Colo. 2013); State v. Mauchley, 2003 UT 10
¶¶ 21- 46, 67 P.3d 477 (Utah 2003).
the U.S. Supreme Court and the federal courts do not follow
the traditional corpus delicti rule but instead examine
whether there is sufficient evidence that an accused's
confessions or other inculpatory statements are
"trustworthy." United States v. Smith, 348
U.S. 147, 156 (1954); Opper v. United States, 348
U.S. 84, 93 (1954). It appears that more than 15 states have
abandoned the traditional corpus delicti rule and have
adopted the federal trustworthiness rule, at least in certain
cases. See State v. Dern, 362 P.3d 566, 580 (Kan.
2015). By way of example, Kansas has adopted the
trustworthiness rule with respect to "crimes that do not
naturally and obviously produce a tangible injury easily
susceptible to physical proof." State v. Dern,
362 P.3d at 583.
case, as discussed below, whether a crime was committed
cannot be resolved by medical evidence - whether on May 9,
1979 four-month old Nathan Hagar died of SIDS (sudden infant
death syndrome) or was smothered. This case therefore is in
the category of an alleged crime that does not naturally and
obviously produce a tangible injury susceptible to physical
proof. However, the State is not arguing that it cannot meet
the corpus delicti standard unless the federal
trustworthiness standard is substituted in its place. Rather
the State contends that there is sufficient evidence in this
case - apart from Burton Hagar's numerous confessions
beginning approximately 10 years after Nathan's death- to
defeat Hagar's motion to dismiss.
Relating to Nathan's Death Independent of Burton
Hagar was born on January 4, 1979 to 23-year old Burton Hagar
and 17-year old Venus Hagar (now Venus Nappi). Nathan was
several weeks early and was delivered by C-section due to
fetal distress. He initially had low Apgar scores but after
several months he was reported as smiling and cooing and
"gaining well." There is no evidence that he had
any unusual medical issues. In an interview on May 16, 1979
Venus Hagar stated that Nathan had not experienced any
illnesses since his birth.
the time after Nathan's birth the relationship between
Venus and Burton (referred to by Venus as "Ben")
had deteriorated to some extent. In her May 16, 1979
interview Venus described Burton as someone who needed a lot
attention and someone who occasionally displayed a violent
temper. He had once thrown a dog against the wall in a rage,
resulting in broken bones, and had threatened to kill himself
a few times, which Venus ascribed in part to his need for
attention. However, he had never once struck Venus or the
baby, and Venus thought he was happy with the baby.
was the baby's primary caregiver. Nathan was still
nursing, and Venus rarely left him alone with Ben, in part
because Ben was not comfortable when the baby cried.
records, probably based on statements of Venus Hagar, and a
report written by Brunswick police officer Mark Phillips
indicate that prior to May 9 Nathan had experienced diarrhea
for several days and had vomited early that morning. At some
point during the day Nathan had begun sweating, and Venus
cooled him down with a damp washcloth. However, the reports
also state that Nathan "was not really sick today -
laughed & played etc.," and appeared to be fine by
the end of the day. Nathan was not yet able to roll over
although Venus thought he was almost at that stage.
described May 9 as a typical day. Ben came home in the
evening, had a beer, and watched TV. Around 9 pm Venus left
the apartment for approximately 20-25 minutes to get some
Kool-Aid from a friend who lived nearby. When she left,
Nathan was awake and in the living room. When she returned,
Nathan was no longer in the living room, and Ben said he had
put Nathan to bed. There was one bedroom in the apartment
which contained both ...