Jeff Welty blogged here and Jessica Smith published a paper here about the implications of the Supreme Court’s holding in Melendez-Diaz that forensic laboratory reports are testimonial, rendering the affiants witnesses who are subject to the defendant’s right of confrontation under the Sixth Amendment. I’ve been pondering the impact of the court’s holding on the admission of evidence for purposes of sentencing in impaired driving cases.
Suppose a defendant pleads guilty to impaired driving in district court. The judge then holds a sentencing hearing as required by GS 20-179. The state attempts to introduce the chemical analysis (a breath test showing an alcohol concentration of .15 or more) as an aggravating factor. The chemical analyst is not present at the hearing. Assuming that Melendez-Diaz would prohibit the introduction of the objected-to affidavit at a trial in district court, does the same rule apply to sentencing in the impaired driving case?
The first question is whether aggravating factors in an impaired driving case are the functional equivalent of elements of the underlying crime. As a reminder (for those who may have been lost on a deserted island for the past decade) the Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466 (2000), that any fact, other than a prior conviction, that increases the penalty for a crime beyond the statutory maximum has to be submitted to a jury and proved beyond a reasonable doubt. In Blakely v. Washington, 542 U.S. 296 (2004), the court explained that that the relevant statutory maximum is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. After Blakely, the General Assembly amended GS 20-179 to require that aggravating factors in impaired driving cases, which increase the maximum sentence a defendant may receive, be proved beyond a reasonable doubt and, in superior court, to require that the state provide notice of its intent to prove such factors and that the jury determine whether the factors exist. In effect, aggravating factors are now treated as elements of the offense of impaired driving.
Yeah, yeah, yeah, you are saying. This is old news. What’s it got to do with Melendez-Diaz? Here’s what. If aggravating factors are elements for purposes of affording a defendant constitutional protections secured by the due process clause and the Sixth Amendment, does the confrontation clause apply to evidence offered at a sentencing hearing to establish such factors? I think it just might. Here’s why.
The North Carolina Supreme Court held in State v. Bell, 359 N.C. 1 (2004), that the confrontation clause applied to bar the admission of an out-of-court testimonial statement at the sentencing phase of the defendant’s capital murder trial. In Bell, the state sought to prove as an aggravating circumstance Bell’s commission of a prior crime of violence. As proof, the state called the investigating officer to testify regarding a statement given by the victim of the robbery. The court of appeals held that the trial court erred in allowing the state to introduce the witness’s statement through the officer.
Next up is State v. Sings, 182 N.C. App. 162 (2007), where the state court of appeals declined to extend application of the confrontation clause to non-capital sentencing hearings. Now you might think, based on this description, that Sings establishes that the confrontation clause doesn’t apply at a sentencing hearing for impaired driving – since, while the punishment for impaired driving can be stiff, it isn’t capital. But I don’t think Sings can be read that broadly. In Sings, the defendant pled no contest to voluntary manslaughter and stipulated to his prior record level and three aggravating factors. The plea agreement stated that the defendant and the state would present evidence about the appropriate sentence, which the agreement stated would be within the presumptive or aggravated range. The evidence Sings objected to was unrelated to any of the stipulated aggravating factors and did not expose Sings to greater punishment than he otherwise potentially faced because of his plea arrangement.
So I think Sings leaves open the question of whether the confrontation clause applies to bar out-of-court testimonial statements admitted to prove a sentencing factor that could potentially increase a defendant’s maximum sentence.
Given that aggravating factors in impaired driving cases are treated as elements for purposes of applying the due process requirement that the standard of proof be beyond a reasonable doubt, it makes sense that the constitutional protections afforded by the confrontation clause would apply to evidence offered at a sentencing hearing to establish such factors. Particularly given that the defendant is entitled to a jury determination of aggravating factors in superior court, it seems incongruous to hold that the confrontation clause does not apply to such determinations. See, e.g., State v. Rodriguez, 754 N.W.2d 672 (Minn. 2008) (holding that because cross-examination is a core component of a defendant’s right to a jury trial, the right of confrontation applies in jury sentencing trials).
For these reasons, my answer to the question posed at the outset of this post is this: Upon objection by a defendant, a chemical analysis may not be introduced at a sentencing hearing in district or superior court to prove an aggravating factor in an impaired driving case if the chemical analyst is not a testifying witness in that proceeding (assuming the analysis was not previously admitted at the underlying trial).