MAINE SUPREME JUDICIAL COURT                                                    Reporter of Decisions
Decision: 2019 ME 97
Docket:   Cum-18-369
Argued:   May 14, 2019
Decided:  June 18, 2019

Panel:       SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, and JABAR, JJ.



                                       STATE OF MAINE

                                                  v.

                                      BURTON B. HAGAR


GORMAN, J.

         [¶1] Corpus delicti, which means “body of the crime,” describes the legal

concept that the occurrence of a crime must be established before a person

can be convicted of committing that crime.                       Corpus delicti, Black’s Law

Dictionary (10th ed. 2014) (quotation marks omitted). In this case, Burton B.

Hagar relies on that principle in his appeal from a judgment of conviction for

manslaughter, 17-A M.R.S.A. § 203(1)(A) (Supp. 1978),1 entered by the trial

court (Cumberland County, Warren, J.) after a conditional guilty plea. Hagar

argues that the State failed to provide sufficient evidence, independent of his

multiple confessions, to establish corpus delicti for the alleged homicide of his

   1 Title 17-A M.R.S.A. § 203(1)(A) has since been amended, but not in any way that affects
Hagar’s appeal. P.L. 1989, ch. 505, § 1 (effective Sept. 30, 1989) (codified at 17-A M.R.S. § 203(1)(A)
(2018)); P.L. 2001, ch. 383, § 9 (effective Jan. 31, 2003) (codified at 17-A M.R.S. § 203(1)(A)
(2018)).
2

infant son. Moreover, Hagar asks us to depart from our well-established

corpus delicti doctrine and to adopt the federal “trustworthiness” standard.2

We decline to do so and affirm the trial court’s judgment.

                                        I. BACKGROUND

        [¶2] On April 7, 2017, a Cumberland County grand jury indicted Hagar

for the 1979 intentional or knowing murder, 17-A M.R.S.A. § 201(1)(A) (Supp.

1978),3 of his infant son. Hagar pleaded not guilty to the charge. On July 24,

2017, Hagar filed a motion to dismiss, arguing that the State could not

establish corpus delicti for the homicide.

        [¶3] By agreement of the parties, the trial court held an evidentiary

hearing on April 10, 2018, solely on the corpus delicti issue. Pursuant to the

agreement, the State offered Hagar a conditional plea deal, allowing him to

plead guilty to manslaughter for a fifteen-year sentence in the event that the




    2See Opper v. United States, 348 U.S. 84, 93 (1954) (“It is necessary, therefore, to require the
Government to introduce substantial independent evidence which would tend to establish the
trustworthiness of the statement.”).

    At oral argument, the State also asked us to consider abandoning or changing Maine’s corpus
delicti doctrine.

    Title 17-A M.R.S.A. § 201(1)(A) has since been amended, but not in any way that affects this
    3

appeal. P.L. 2001, ch. 383, § 8 (effective Jan. 31, 2003) (codified at 17-A M.R.S. § 201(1)(A) (2018)).
                                                                                                  3

trial court determined that the State had established corpus delicti.4 M.R.U.

Crim. P. 11(a)(2); see State v. Reed, 676 A.2d 479, 479-80 (Me. 1996).

        [¶4] At the corpus delicti hearing, the parties submitted several exhibits

in evidence, including the “Report of Investigation” and the autopsy records

relating to the baby’s death; a report from the forensic pathologist retained by

the State to review those records; Hagar’s medical records relating to his

mental health; and documents, audio recordings, and video recordings

containing various confessions and admissions by Hagar over the span of

several years. The court also heard testimony from four witnesses: the baby’s

mother, who was also Hagar’s wife at the time of the baby’s death; a retired

Brunswick police officer who, in 1979, responded to the 9-1-1 call reporting

the baby’s death; a Maine State Police detective; and the forensic pathologist

retained by the State for this case.

        [¶5] By order dated July 10, 2018, the court denied Hagar’s motion to

dismiss. In doing so, the court made the following factual findings, which are

supported by competent evidence in the record. See State v. Greenleaf, 2004

ME 149, ¶ 13, 863 A.2d 877; Reed, 676 A.2d at 482.




  4   The agreement allowed either party to appeal an unfavorable corpus delicti determination.
4

        [¶6] The baby was born on January 4, 1979; he was delivered several

weeks early by C-section but did not have any unusual illnesses or medical

conditions. In the months following the baby’s birth, the relationship between

his parents had deteriorated to some extent. The mother described Hagar as

someone who needed a lot of attention and who occasionally displayed a

violent temper, including throwing a dog against a wall in a rage.

        [¶7] The mother was the baby’s primary caretaker. She rarely left the

baby alone with Hagar, in part because Hagar became uncomfortable when

the baby cried. In caring for the baby, the mother followed what was then

standard medical advice: she always placed the baby on his stomach when she

put him in his crib and did not place any pillows, blankets, stuffed animals, or

toys in the crib. At approximately four months of age, the baby was not yet

able to roll over.

        [¶8] On the day of his death—May 9, 1979—the baby experienced

diarrhea and vomiting in the morning. During the day, the mother cooled the

baby with a damp washcloth after noticing that he was sweating.5 By the end

of the day, however, the baby did not appear to be sick.


    5Although the medical examiner’s report of the baby’s death states that the mother brought the
baby to the hospital on the morning of May 9 to be examined, no medical record in the court’s
record corroborates this alleged visit.
                                                                              5

      [¶9] At approximately 9:00 p.m. on May 9, the mother left the family’s

Brunswick apartment for twenty to twenty-five minutes to run an errand.

When she left, Hagar was in the living room watching television and the baby

was awake and also in the living room. When the mother returned, the baby

was no longer in the living room, and Hagar told her that he had put the baby

to bed; the mother did not check on the baby at that time.

      [¶10] Shortly after the mother returned home, Hagar went into the

bedroom and then screamed. The mother rushed into the bedroom to find the

baby lying face up in his crib, not breathing, his face gray; Hagar was standing

next to the crib, distraught. The mother or a neighbor called the police and

then the mother attempted mouth-to-mouth resuscitation. Paramedics soon

arrived and took the baby to the hospital. Although the mother went to the

hospital that night, Hagar did not.

      [¶11]   At the hospital, the baby was pronounced dead, his death

attributed to “Sudden Infant Death Syndrome” (SIDS). An autopsy of the

baby’s body performed on the day following his death revealed no internal

injuries and no signs of an infection; the autopsy report stated that these

findings were “consistent with” SIDS.
6

      [¶12] At the corpus delicti hearing, the officer testified that he was one

of the first responders to the 9-1-1 call. He explained that, when he entered

the bedroom in 1979, he saw the baby lying on his back in the crib and a

pillow at the head of the crib. Before leaving the apartment for the hospital,

the officer picked up the pillow, flipped it over, and observed a white or

yellowish wet area of mucus or other fluid on the underside, approximately

two inches in circumference. The officer did not see anything suspicious or

any signs that there had been a physical altercation in the bedroom.

      [¶13] After learning that the baby was dead and that his death had been

attributed to SIDS, the officer wrote a brief report that indicated that the baby

had been sick earlier in the day, but did not include in the report his

observations concerning the pillow. At the corpus delicti hearing, the officer

explained that he thought the mucus on the pillow was consistent with the

baby’s illness.

      [¶14] Nearly two weeks after the baby’s death, a Brunswick police

detective interviewed Hagar. Hagar told the detective that he had put the

baby to bed in the crib while the mother was out of the apartment. According

to Hagar, he went back into the bedroom approximately forty-five minutes
                                                                                7

later to check on the baby and found him bluish in color. The detective

captioned his report of that interview “[baby’s name] (Sudden Infant Death).”

      [¶15] In May of 1991, Hagar’s third wife—not the baby’s mother—

notified police that in 1988 Hagar had told her that he had smothered the

baby with a pillow because he could not get the baby to stop crying. The third

wife explained to police that she did not believe Hagar at first but that over

time she had changed her mind; she also mentioned that Hagar had confessed

to others, including his second wife, two of his brothers, and two of his mental

health counselors.

      [¶16] This disclosure from Hagar’s third wife caused law enforcement

officials to reopen their investigation into the baby’s death, and on May 16,

1991, a Maine State Police detective interviewed Hagar.            During that

interview, Hagar confessed to killing the baby, and confirmed that he had

confessed to several others over the years. Despite this confession, the State

decided to close the investigation because it did not believe it could establish

corpus delicti.

      [¶17] In 2017, however, the Maine State Police again reopened the

case; detectives reinterviewed Hagar about the baby’s death in January and

March of 2017. In those interviews, Hagar again confessed to killing his son.
8

        [¶18] After it reopened the case in 2017, the State asked a forensic

pathologist to review certain records, including the baby’s medical records

and reports created at the time of the autopsy, as well as the January and

March 2017 interviews with Hagar. At the corpus delicti hearing, the forensic

pathologist testified that although the medical and autopsy reports are

consistent with SIDS,6 they are not inconsistent with death caused by

intentional smothering.           She explained that most post-mortem findings

associated with death by intentional smothering occur as a result of the

victim’s struggle against the attack, but that a baby who is not even able to roll

over would be unable to struggle.

        [¶19] Ultimately, the court found that the officer’s testimony about the

mucus on the underside of the pillow was credible and concluded that this

testimony, coupled with other evidence,7 established a “substantial belief that

[the baby] was smothered”:

        [I]t is significant that (1) [the mother] testified that she did not
        place any pillows in the crib (so a pillow should not have been


    6The forensic pathologist also explained that an unexplained death of a child under the age of
one year is now identified as “Sudden Unexplained Infant Death.”
    7  The court determined that this “other evidence”—“Hagar’s occasional displays of violent
temper, his need for attention, his discomfort when the baby cried, the deterioration of his
relationship with [the mother], and his failure to go to the hospital”—“would not raise a sufficient
belief but constitute[d] warning signals that add[ed] weight to the corpus delicti finding.”
                                                                                                   9

       there) and (2) the wet area was on the underside of the pillow
       (which [the baby] would not have been able to reach on his own).

The court also accepted the forensic pathologist’s testimony that although the

condition of the baby’s body after death was consistent with SIDS, it was also

consistent with asphyxiation. The court found that the State had “sufficiently

established corpus delicti” and therefore denied Hagar’s motion to dismiss.

       [¶20] On August 28, 2018, the court held a sentencing hearing at which

Hagar entered a conditional plea of guilty to manslaughter for his son’s 1979

death.8 The court sentenced Hagar to fifteen years in prison. Hagar timely

appeals. See 15 M.R.S. § 2115 (2018); M.R. App. P. 2B(b)(1).

                                        II. DISCUSSION

       [¶21] Hagar argues that the State failed to meet its corpus delicti burden

pursuant to Maine common law and, alternatively, pursuant to the federal

trustworthiness standard.9 With regard to Maine’s doctrine, Hagar asserts

that the State failed to present sufficient evidence—independent of his




   8 As mentioned earlier, the conditional plea allowed Hagar to appeal the court’s denial of his
motion to dismiss.
   9 Hagar asks that we require trial courts to consider the reliability of a defendant’s confessions

rather than have courts focus exclusively on whether the State can produce independent evidence
that a crime has been committed. See Smith v. United States, 348 U.S. 147 (1954); Opper v. United
States, 348 U.S. 84 (1954). Because we see no reason to abandon our corpus delicti precedent, we
do not address this part of Hagar’s argument.
10

confessions—that would establish a substantial belief that someone had killed

the baby.

      [¶22] Maine’s corpus delicti doctrine imposes a preliminary evidentiary

burden on the State: before the State can introduce in evidence an

incriminating statement made by a defendant, it must establish, with evidence

independent of that statement, that the crime charged actually occurred. State

v. Poulin, 2016 ME 40, ¶¶ 8-9, 134 A.3d 886. The trial court—in its role as a

gatekeeper—determines whether the State has established corpus delicti. See

id. ¶¶ 9-11; M.R. Evid. 104(a).    We review a trial court’s corpus delicti

determination in two parts: we review its factual findings for clear error and

then we review de novo whether those facts are sufficient to establish

probable cause to believe that a crime has been committed.            State v.

Fundalewicz, 2012 ME 107, ¶ 10, 49 A.3d 1277.

      [¶23] Derived from the common law, Maine’s corpus delicti doctrine is

designed to “provide some measure of assurance that no one will stand

convicted of a crime without independent evidence that a crime occurred.”

Poulin, 2016 ME 40, ¶ 8, 134 A.3d 886. Thus, “[p]ursuant to this doctrine,

before a defendant’s self-inculpatory out-of-court statement may be admitted

in evidence and considered by the fact-finder, the State must present
                                                                            11

sufficient credible evidence to create a substantial belief that the crime

charged has been committed by some person.” Fundalewicz, 2012 ME 107,

¶ 8, 49 A.3d 1277 (footnotes omitted) (quotation marks omitted).           The

“substantial belief” burden of proof “is a low one,” id. ¶ 9 (quotation marks

omitted), and does not rise to the level of “beyond a reasonable doubt” or even

to a “fair preponderance of the evidence,” Reed, 676 A.2d at 481 (quotation

marks omitted). Instead, we have described the “substantial belief” burden as

“resembling the probable cause standard,” existing “where the facts and

circumstances within the knowledge of the factfinder would warrant a

prudent and cautious person to believe that the crime was committed by

someone.” Fundalewicz, 2012 ME 107, ¶ 9, 49 A.3d 1277 (alteration omitted)

(quotation marks omitted).

      [¶24] When corpus delicti is at issue in a murder or manslaughter case,

“the State must establish, with facts independent of the defendant’s

statements, (1) the fact of death of the victim; and (2) the criminal agency of

another responsible for that death.” Reed, 676 A.2d at 481 (quotation marks

omitted). To meet its corpus delicti burden, the State is not required to prove

the identity of the perpetrator or the mens rea element, and it need not

disprove all other explanations for the death of the victim. See id.; State v.
12

Anderson, 409 A.2d 1290, 1301 (Me. 1979). Moreover, the trial court can

make a corpus delicti determination based on circumstantial evidence and

reasonable inferences. Poulin, 2016 ME 40, ¶ 17, 134 A.3d 886; Fundalewicz,

2012 ME 107, ¶ 11, 49 A.3d 1277.

      [¶25] Although there are several cases in Maine addressing corpus

delicti in the context of child deaths, see State v. Cotton, 673 A.2d 1317,

1320-22 (Me. 1996); State v. Discher, 597 A.2d 1336, 1338-40 (Me. 1991);

State v. Chapman, 496 A.2d 297, 303-04 (Me. 1985), one case—State v. Reed,

676 A.2d 479—is particularly relevant. In that case, the seven-month-old

infant son of Eric Reed died on October 29, 1989, while sleeping in a bed with

Reed. Id. at 479-80. A police officer suspected Reed of smothering his son—

and told the medical examiner as much—after the officer found a pillow on

the bed next to the dead baby; the pillow had “a four-to[-]five-inch wet spot

on the side that had been face down.” Id. at 480. The state medical examiner,

however, concluded that the cause of death was SIDS after finding no physical

evidence of foul play during the autopsy. Id. The baby, before his death, had

been healthy. Id.

      [¶26]   Reed was indicted for the murder of his son only after he

confessed to police in 1993 that he had killed the baby. Id. at 479. The trial
                                                                             13

court held a preliminary hearing on corpus delicti after Reed filed a pretrial

motion to dismiss. Id. at 479-80. The court ultimately found that the State

had met its burden of presenting sufficient evidence, independent of Reed’s

confession, to establish a substantial belief that the baby’s death was a

homicide, and denied Reed’s motion to dismiss. Id. at 481. The trial court in

Reed made several factual findings that were crucial to its ultimate conclusion

on the corpus delicti issue:

      The location of the baby on the defendant’s bed, the fact that he
      was face up with mucus discharge in his nose area and the
      location of the wet pillow case placed at the head of the bed face
      down strongly suggests that someone placed that pillow over the
      baby’s face area for a sufficient period of time to cause a wet area
      to appear with an apparent mucus discharge in the center of the
      wet area. The baby could not have moved the pillow from his
      location to the head of the bed, nor could he have placed it face
      down.

Id. (quotation marks omitted). We affirmed the trial court’s corpus delicti

determination in Reed, holding that the facts in the record were “sufficient to

establish a substantial belief that the infant died as the result of a criminal

agency.” Id. at 482.

      [¶27] Here, as in Reed, the trial court made several factual findings,

supported by competent evidence in the record, that are sufficient to establish

a substantial belief that the baby’s death was a result of criminal agency. See
14

id. at 480-82. In this case, the trial court found that (1) the medical evidence

presented by the State, through the forensic pathologist, was consistent with

smothering; (2) the officer’s testimony, including his revelation that he had

discovered a wet spot on the underside of the pillow, was credible; (3) the

pillow should not have been in the crib because the mother testified that she

normally did not place pillows in the crib; and (4) the baby would not have

been able to reach the underside of the pillow on his own. Because these

findings, when taken together, establish corpus delicti, the trial court did not

err by denying Hagar’s motion to dismiss. See Fundalewicz, 2012 ME 107,

¶¶ 10, 13-14, 49 A.3d 1277; Reed, 676 A.2d at 481-82.

      [¶28]   Hagar contends that although the facts in Reed are nearly

identical to the facts in this case, we should nonetheless distinguish Reed

because the officer’s revelation concerning the pillow—thirty-five years after

the fact—is not “sufficiently credible to create a substantial belief that the

crime charged was committed by someone.”

      [¶29] Although we acknowledge that, unlike the officer in Reed, the

officer in this case did not report the wet spot on the pillow immediately after

the baby’s death, compare with Reed, 676 A.2d at 480 (describing how the

officer there “informed the medical examiner that he believed the child had
                                                                                                  15

been smothered”), it is not for us to weigh the credibility of a witness, see

Gordon v. Cheskin, 2013 ME 113, ¶ 12, 82 A.3d 1221 (“We defer to the trial

court’s determination of witnesses’ credibility . . . .”).10 Here, the trial court’s

factual findings are supported by competent record evidence and “are

sufficient to establish probable cause to believe” that someone killed Hagar’s

son.     Fundalewicz, 2012 ME 107, ¶ 10, 49 A.3d 1277 (quotation marks

omitted).

        The entry is:

                           Judgment affirmed.



Verne E. Paradie, Jr., Esq. (orally), Paradie & Rabasco, Lewiston, for appellant
Burton B. Hagar

Aaron M. Frey, Attorney General, and Lara M. Nomani, Asst. Atty. Gen. (orally),
Office of the Attorney General, Augusta, for appellee State of Maine


Cumberland County Unified Criminal Docket docket number CR-2017-1909
FOR CLERK REFERENCE ONLY




   10   In this case, the trial court specifically addressed Hagar’s concerns about the officer’s
credibility; in doing so, it explained that because the death had been ascribed to SIDS, and because
the officer was aware that the baby had been vomiting the morning of his death, the officer had a
plausible reason to not include his observation of the wet spot on the underside of the pillow in his
1979 police report.
