#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. SHOW
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
#27374

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


_________________________________
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.

                                         -1-
#27374

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


                                          -2-
#27374

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.




                                          -3-
#27374

                                        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.”).


                                           -4-
#27374

[¶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.


_________________________________
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.

                                             -5-
#27374

             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.


_________________________________
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 . . .)
                                          -6-
#27374

[¶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


_________________________________
(. . . 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).

                                           -7-
#27374

“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.




                                            -8-
#27374

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


_________________________________
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 . . .)
                                             -9-
#27374

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

_________________________________
(. . . 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).

                                         -10-
#27374

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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#27374

[¶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


_________________________________
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.

                                           -12-
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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


_________________________________
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.

                                         -13-
#27374

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.
_________________________________
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.

                                          -14-
#27374

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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