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Delivery of Controlled Substance – Sufficiency of Evidence (and Corroboration of Confession Rule)

State v. Edward Bannister, 2007 WI 86, 302 Wis. 2d 158, 734 N.W.2d 892, reversing 2006 WI App 136

Issue/Holding: Bannister’s confession to giving morphine to someone who died from an overdose of the substance was sufficiently corroborated to support his his conviction:

¶ 22 We first address whether the State satisfied the corroboration rule during the course of Bannister’s trial. The corroboration rule is a common-law standard. …

¶ 26 The present phrasing of the corroboration rule test requires that the State corroborate “any significant fact.” …

¶ 31 A significant fact is one that gives confidence that the crime the defendant confessed to actually occur. A significant fact need not either independently establish the specific elements of the crime or independently link the defendant to the crime. Rather, the State must present at least one significant fact that gives confidence that the crime the defendant has been convicted of actually did occur.

¶ 34 In this case, the evidence of morphine being present in Michael Wolk’s body at the time of his death constitutes a significant fact. The presence of morphine is evidence of the fact that Michael used morphine. That fact corroborates Bannister’s confession that he delivered morphine between December 2002 and mid-January 2003 to the Wolks because it gives confidence that he in fact gave the Wolks morphine.

¶36      Bannister contends that a significant fact must be a more meaningful and particularized fact. …

¶37      Adopting such a definition of significant fact would deviate from Wisconsin’s well-established test for corroboration. …<

¶38      The State presented evidence that Michael Wolk used morphine. That fact was significant because it gave confidence that Bannister delivered morphine to the Wolks. Accordingly, the State satisfied the corroboration rule.

Though the court “reject(s) the approaches of other jurisdictions,” it doesn’t say what those approaches might be, which makes the remark less illuminating than it should be. The “significant fact” test is, to be sure, a bit squishy but it is nonetheless clear that it mandates at least some independent corroboration of the charged crime. Note that the federal rule, as recently characterized by the Washington supreme court, merely requires “independent evidence sufficient to establish that the incriminating statement is trustworthy,” State v. Brockob, 159 Wn.2d 311, 150 P.3d 59 (2007). In other words,Bannister doesn’t appear to go as far as the relaxed federal rule, and it remains to be seen just how relaxed our rule is. Did our court mean, for example, to reject the Washington rule (Brockob) which requires corroboration of the specific crime charged? Simply not clear.



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