Confrontation Rights Apply at Sentencing in Noncapital Cases

In 2002, David Hurt pled guilty to second-degree murder. Over the next several years his case bounced back and forth between the trial and appellate courts based on problems with his aggravated-range sentence. In the meantime, the United States Supreme Court decided Blakely v. Washington, 542 U.S. 296 (2004). Hurt’s case was eventually remanded for a Blakely-compliant sentencing hearing in 2008.

With the State still seeking an aggravated sentence (this time on the basis that the crime was especially heinous, atrocious, or cruel), the court empanelled a jury to consider the aggravating factor—exactly what a court should do for a case of this vintage where a defendant pleads guilty to a felony but denies the existence of any aggravating factors. See State v. Blackwell, 361 N.C. 41 (2006) (approving use of a special verdict for cases sentenced after Blakely but not covered by North Carolina’s 2005 Blakely-fix legislation). At the hearing, the State presented lab evidence and an autopsy report prepared by non-testifying witnesses. Based on that evidence—which identified the defendant and described a grisly and painful attack on the victim—the jury found beyond a reasonable doubt that the offense was especially heinous, atrocious, or cruel, and the court sentenced the defendant in the aggravated range. On appeal, the defendant argued that admission of that evidence violated his Sixth Amendment confrontation rights under Crawford v. Washington, 541 U.S. 36 (2004).

The court of appeals agreed, holding as a matter of first impression that Crawford-style confrontation rights apply to “all sentencing proceedings where a jury makes the determination of a fact or facts that, if found, increase the defendant’s sentence beyond the statutory maximum.” Slip op. at 9. Such aggravating factors are effectively elements of the conviction offense. As such, the court ruled, they must be proved in the same Crawford-compliant manner as any other element.

Hurt is the proverbial other shoe that many had anticipated after Blakely—including Shea, who pretty much nailed this issue here. How could courts have made such a big deal about what the Sixth Amendment requires regarding to whom (the jury) and to what standard of proof (beyond a reasonable doubt) aggravators must be proved, and yet appear relatively unconcerned about what the very same amendment commands as to how they may be proved? Our courts previously determined that confrontation rights apply at capital sentencing hearings, State v. Bell, 359 N.C. 1 (2004), but this is the first time the rule has been extended to a noncapital case—in North Carolina, or virtually anywhere else for that matter. The clear majority rule across the country, especially in the federal courts, is that confrontation rights do not apply at sentencing in noncapital cases. The Hurt court distinguished the federal cases by noting that aggravating factors do not function as elements under the federal guidelines, which are advisory under United States v. Booker, 543 U.S. 296 (2005). As to the state cases, the court concluded that the Supreme Court of Minnesota—apparently the only state high court to have extended confrontation rights to noncapital sentencing, State v. Rodriguez, 754 N.W.2d 672 (Minn. 2008)—represents the “better-reasoned view.”

Having determined that Crawford applied at sentencing, the court went on to consider whether the substitute analyst testimony used to prove the aggravating factor violated the rule from Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). The court concluded that it did and remanded for resentencing.

Doctrinally, Hurt is a big case. It was featured on Professor Doug Berman’s prominent sentencing blog, and I noticed it was captioned in this morning’s BNA Criminal Law Reporter. It is important to remember, though, what Hurt does not do. First, it does not affect cases where a defendant stipulates to aggravating factors. State v. Sings, 182 N.C. App. 162 (2007). Second, it does not apply to evidence a court might consider when deciding matters resting solely in its discretion and not requiring any particular findings of fact, such as selecting a sentence length within a particular range, choosing a sentence disposition (active or probationary), or deciding to run sentences consecutively. Those decisions are still subject to the broad inquiry sanctioned by cases like State v. Pope, 257 N.C. 326 (1962), and the due process bounds set out in Williams v. New York, 337 U.S. 241 (1949). Finally, the Hurt court noted its holding has no effect on the inapplicability of the rules of evidence at sentencing—at least to the extent that those rules are a legislative choice and not a constitutionally-mandated requirement. Slip op. at 30, n.3.

I’m interested to hear readers’ thoughts on how Hurt will impact sentencing practice. Given that only four percent of felony cases are sentenced in the aggravated range, my sense is that impaired driving cases will be the ones in which the Hurt blocker will apply most often to keep out unconfronted testimonial evidence.