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.

2 comments on “Confrontation Rights Apply at Sentencing in Noncapital Cases

  1. Two and a half years later…the NC Supreme Court reversed Hurt today. http://appellate.nccourts.org/opinions/?c=1&pdf=MjAxMy81MDVQQTEwLTEucGRm. However, the case was decided on the grounds that the testimony supporting the aggravating factor did not violate the Confrontation Clause, or was harmless if it did. There was no discussion of the background question of whether a Crawford-style confrontation right applies at a noncapital sentencing.

  2. Six years later….The State has refused to disclose the lab reports that were allegedly generated in 1999, but were not disclosed until nearly a decade later to allow substitute experts to give false testimony regarding testing that was apparently never conducted. David’s access to the Courts has been completely blocked to allow the State to conceal the evidence necessary to prove that his conviction was obtained in violation of the law.

    David was indicted for first-degree murder in 1999 and was held in the Caldwell County Jail under the threat of the death from 1999-2002 despite the fact that the State couldn’t even support a charge of accessory after the fact. During the 2002 sentencung hearing, former ADA Jason Parker went to great lengths to emphasize that the victim did not die immediately from the stab wounds inflicted by his own nephew, William Parlier; nevertheless, the State intended to have David executed for the murder Parlier committed. We now know that the 2001 resignation of former Agent David Spittle, who was later identified as the agent who performed the alleged DNA analysis on various items of evidence, left the State with no expert witness. According to information provided through the NCIDS forensic science resources website, former Agent Spittle was not certified to perform DNA analysis; nevertheless, he was represented as a DNA expert and testified as such at capital trials prior to his resignation.

    It seems that the two attorneys who were assigned to defend David’s life would have known that no expert testimony could have been given and would not have pressured him to plead guilty based on the possibility that he would be found guilty and sentenced to death based on expert testimony that could never have been given.

    Over the past year, David has filed multiple pro se motions attempting to obtain the discovery to which he is entitled and to challenge the forensic evidence in his case, all of which have been denied by the same judge who refuses to recuse himself from David’s case. Because none of the Denial Orders contain any actual findings of fact regarding the claims raised in the motion, the judge’s decisions cannot be reviewed by the Court of Appeals. As a result, he recently filed a complaint in federal court regarding the violations of his constitutional rights that continue to prevent him from obtaining relief.

    He has also filed an application with the Governor’s Clemency Office requesting a sentence commutation based on the discovery violations that now span over two decades as well as the false testimony of the substitute experts; however, we have been advised that the review process is quite time consuming due to the large number of applications that the office receives. I was also advised that his name will not be posted on the website indicating that he has applied for clemency until clearance has been given by the Governor’s legal counsel.

    We remain hopeful that he will receive justice through clemency and that the truth regarding the public corruption that resulted in his wrongful conviction will be exposed. As an indigent defendant, he never stood a chance at obtaining justice that continues to be denied by the Caldwell County Courts.

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