Opinion
Record No. 0405-93-2
Decided: August 30, 1994
FROM THE CIRCUIT COURT OF HENRICO COUNTY, George F. Tidey, Judge
Affirmed.
Robert P. Geary for appellant.
Janet F. Rosser, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Benton, Willis and Elder
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Michael Scott Blotzer contends that the evidence was insufficient to support his conviction of conspiracy to distribute marijuana. We find no error and affirm the judgment of the trial court.
After his arrest for distribution of marijuana to a police informant, Morgan Haefer, Blotzer confessed to Officer Norton that he had conspired with Ricky Pryor to distribute marijuana that he obtained from Pryor. On appeal, Blotzer contends that the Commonwealth's evidence was insufficient to corroborate that confession.
In Virginia an extrajudicial confession of an accused that he committed the offense with which he is charged is not, alone and uncorroborated, adequate proof of the corpus delicti. "The purpose of the corroboration rule is to reduce the possibility of punishing a person for a crime which was never, in fact, committed."
Jefferson v. Commonwealth, 6 Va. App. 421, 424, 369 S.E.2d 212, 214 (1988) (citations omitted).
The corroboration required is limited to the facts constituting the corpus delicti. And where the accused had fully confessed the crimes "only slight corroborative evidence is necessary to establish the corpus delicti."
Swann v. Commonwealth, 247 Va. 222, 236, 441 S.E.2d 195, 205 (1994) (citations omitted). See also Hamm v. Commonwealth, 16 Va. App. 150, 157, 428 S.E.2d 517, 522 (1993).
Blotzer fully confessed the elements of conspiracy to distribute marijuana. He identified his co-conspirator, Ricky Pryor, and described their agreement whereby Blotzer would obtain marijuana from Pryor for resale on terms fixed by Pryor. This confession was corroborated by Blotzer's recorded pre-arrest negotiations with Haefer, referring to his associate and to their arrangement, by his dealings with Haefer in accordance with that described arrangement, and by his recorded conversation with Pryor wherein Pryor said, "I understand what you're doing. You're playing tag and I don't have anything to say to you." This last statement supported the inference that Pryor realized that Blotzer was then trying to implicate him.
The judgment of the trial court is affirmed.
Affirmed.
The rule is well established in Virginia that a conviction for a criminal offense may not rest only on an uncorroborated extrajudicial confession.
"Extrajudicial confessions of the accused are competent evidence tending to prove the corpus delicti. But the corpus delicti cannot be established by such a confession uncorroborated by other evidence. In other words, a conviction in a criminal case is not warranted by the extrajudicial confession of the accused alone. The confession must be corroborated in a material and substantial manner by evidence aliunde of the corpus delicti. The corroborating evidence, however, need not of itself be conclusive; it is sufficient if when taken in connection with the confession, the crime is established beyond reasonable doubt. . . ."
Phillips v. Commonwealth, 202 Va. 207, 210-11, 116 S.E.2d 282, 284-85 (1960) (quoting 7 M.J., Evidence, Sec. 240, p. 616). The record in this case does not contain even slight corroborative evidence of a conspiracy.
The evidence proved that Michael Blotzer sold an ounce of marijuana to a police informant. A week later, the police recorded two conversations in which the police informant talked to Blotzer on the telephone to negotiate another purchase. Blotzer offered to sell the police informant a larger quantity of marijuana if the police informant paid him three thousand dollars in a parking lot and waited fifteen minutes for delivery of the marijuana. Blotzer said those arrangements were necessary because he was getting the marijuana from "this guy." The police informant told Blotzer that he was purchasing the marijuana for another person who would not allow him to give the money to Blotzer unless the exchange for the marijuana occurred simultaneously with the delivery of money. The police informant suggested that Blotzer make the exchange in Blotzer's apartment. Blotzer stated that he was "dealing with 4 or 5" sellers and refused to agree to the arrangement suggested by the police informant. They angrily terminated the telephone negotiation.
The police arrested Blotzer and charged him with distributing the ounce of marijuana to the police informant and with conspiracy to distribute marijuana. Following the arrest, Blotzer told the police that he had attempted to negotiate the sale of the larger amount of marijuana because he needed "quick money" to pay his bills. He also told the police that Rick Pryor was involved in the transaction with him.
The police fitted Blotzer with a recording device and sent him to Pryor's apartment. The evidence contains no indication of Blotzer's comments to Pryor. However, a police officer testified that during the conversation Pryor said, "I understand what you're doing. You're playing tag and I don't have anything to say to you."
The transcript of the statements that Blotzer made during his pre-arrest negotiations with the police informant included no evidence of a conspiracy apart from Blotzer's own statements that he was participating in a criminal endeavor with another. That extrajudicial confession was inadequate proof of the corpus delicti. Id. The majority errs in relying upon Blotzer's post-arrest confession as the evidence needed to corroborate his pre-arrest statements. To characterize one extrajudicial admission as corroboration of another, as the majority does, is to bootstrap two impermissible modes of proof together in the hopes of rendering one of them sufficient. See, e.g., Wong Sun v. United States, 371 U.S. 471, 488-89 (1963); 30 Am.Jur.2d, Evidence Sec. 1137 (1967); E. H. Schopler, Annotation, Corroboration of Extrajudicial Confession or Admission, 45 A.L.R.2d 1316 Sec. 11 (1956).
The majority also holds that Pryor's statement to Blotzer was corroborative of the conspiracy. The record does not reveal that Pryor spoke any words other than, "I understand what you're doing. You're playing tag and I don't have anything to say to you." Those words do not amount to an admission of involvement in a conspiracy or otherwise prove that Pryor understood the conversation to be about a criminal matter. Moreover, the trial judge could not have inferred from the context of the conversation what Pryor meant. Neither Pryor nor Blotzer testified. The police officer who testified to the conversation stated only that, "Mr. Blotzer went up to the door and began to speak to Mr. Pryor." Thus, the record gives no indication of the statements that Blotzer made to elicit Pryor's response.
Furthermore, because Pryor did not testify, the trial judge was in no position to gauge Pryor's credibility. The majority, however, asserts that Pryor's statement proves "that Pryor realized that Blotzer was then trying to implicate him." Even if Pryor believed that Blotzer was trying to implicate him, that fact by itself does not tend to prove that the two men conspired together. Cf. Phillips, 202 Va. at 211-12, 116 S.E.2d at 285 (where evidence corroborated defendant's confession in part, but did not corroborate that crime actually took place, corpus delicti insufficiently proven).
The evidence was sufficient to prove that Blotzer distributed marijuana to the police informant. However, since no evidence proved that Blotzer engaged in a conspiracy to distribute marijuana, I would reverse the conviction and dismiss the indictment. Therefore, I dissent.