COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Haley and Senior Judge Bumgardner
Argued at Richmond, Virginia
LATROY A. HARPER
OPINION BY
v. Record No. 2441-07-2 JUDGE JAMES W. HALEY, JR.
APRIL 28, 2009
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Bradley B. Cavedo, Judge
Jessica M. Bulos, Assistant Appellate Defender (Office of the
Appellate Defender, on brief), for appellant.
Eugene Murphy, Senior Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Latroy A. Harper (“Harper”) entered guilty pleas to aggravated sexual battery in violation
of Code § 18.2-67.3(A) and taking indecent liberties with a minor child in violation of Code
§ 18.2-370(A)(1). He appeals the prison sentences ordered by the trial court. The only question
presented is whether the Confrontation Clause of the Sixth Amendment to the United States
Constitution applies to post-trial sentencing proceedings. Harper argues that the United States
Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004), has effectively
overruled our earlier decision in Moses v. Commonwealth, 27 Va. App. 293, 300, 498 S.E.2d
451, 455 (1998), holding that the Confrontation Clause does not apply to sentencing proceedings.
Our review of the relevant decisions persuades us that, though Crawford substantially changed
the way courts must analyze claims under the Confrontation Clause, neither Crawford nor its
progeny have expanded the applicable scope of the right of confrontation to sentencing hearings.
Thus, we conclude that Moses controls this case and that it also compels us to affirm Harper’s
sentences. 1
FACTS
On May 10, 2007, Harper entered guilty pleas to the indictments. When asked for the
factual basis for Harper’s pleas of guilty, the Assistant Commonwealth’s Attorney made a
proffer of what she believed the Commonwealth’s evidence would have shown if the case had
gone to trial. The proffer was that, on September 13, 2006, Harper’s sister asked Harper to
watch her eleven-year-old son, S.D. When she returned and opened the door to Harper’s
bedroom, she saw S.D. with Harper. She also saw Harper pulling up his pants. Harper and his
sister began to argue, and Harper left the house through his bedroom window. S.D. later told the
investigating police officers that Harper had grabbed him, pulled him into his bedroom,
positioned him facedown on the bed, pulled his pants down, and attempted to have anal sex with
him. When the police arrived, they questioned Harper about the incident. After receiving
warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), Harper told the police that S.D.
wanted to know what sex was like and that Harper was about to show him when they were
interrupted by his sister walking into his bedroom. At his guilty plea hearing, the trial judge
asked Harper’s defense counsel whether Harper had any objection to the Commonwealth’s
proffer. Though Harper disputed the Commonwealth’s account as to a collateral matter, 2 he
accepted as true all of the portions of the Commonwealth’s proffer mentioned above.
1
We need not address whether, even if the Confrontation Clause applied to sentencing
hearings, the challenged statements would constitute testimonial hearsay in violation of
Crawford.
2
The Commonwealth proffered that Harper hit his sister first during the argument, which
Harper denied. This was the only event disputed by the parties in the trial court. It is also
irrelevant to Harper’s guilt as to the sex offenses to which he entered guilty pleas and to the legal
question presented.
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On September 26, 2007, Harper appeared at his sentencing hearing. Both Harper and the
Commonwealth presented evidence and argument. The Commonwealth’s sentencing evidence
included testimony from Harper’s sister. She described the difficulties that Harper’s offense had
created in their family. She also stated that S.D. did not like Harper, S.D. did not want to be
around Harper, and that “[S.D.] don’t even want him living.” Harper objected to these
statements, arguing that his Sixth Amendment right to confront the witnesses against him meant
that S.D.’s out-of-court testimonial statement could not be introduced against him because
Harper had had no prior opportunity for cross-examination of S.D. The trial court overruled
Harper’s objection and sentenced him to a term of ten years imprisonment, with six years
suspended, on the charge of aggravated sexual battery and ten years imprisonment, all
suspended, on the charge of taking indecent liberties with a minor child. This appeal followed.
ANALYSIS
We review de novo Harper’s claim that his right to confrontation was violated. Dickens
v. Commonwealth, 52 Va. App. 412, 417, 663 S.E.2d 548, 550 (2008). There is no dispute that
the alleged constitutional violation of which Harper complains took place during a sentencing
hearing. There is, likewise, no dispute that our decision in Moses, 27 Va. App. 293, 498 S.E.2d
451, concluded that the Confrontation Clause of the Sixth Amendment does not apply to
sentencing proceedings.
Defendant next contends that the Commonwealth’s refusal to
identify all its sources violated her right to confrontation under the
Sixth Amendment. The United States Supreme Court has stated
“the right to confrontation is a trial right, designed to prevent
improper restrictions on the types of questions that defense counsel
may ask during cross-examination.” Ritchie v. Pennsylvania, 480
U.S. 39, 52 (1987) (citing California v. Green, 399 U.S. 149, 157
(1970)). In Ritchie, the defendant was denied access during
pretrial discovery to investigative files which contained statements
by the victim and information about witnesses. The Court
concluded the Sixth Amendment was not offended because a
defendant has no right to confront witnesses outside of trial. See
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Maryland v. Craig, 497 U.S. 836, 849 (1990) (“‘the Confrontation
Clause reflects a preference for face-to-face confrontation at
trial’”); Goins v. Commonwealth, 251 Va. 442, 456, 470 S.E.2d
114, 124 (1996). Therefore, application of the Confrontation
Clause to the post-trial sentencing proceedings is inappropriate.
Id. at 300-01, 498 S.E.2d at 455 (emphasis in original). The principle of stare decisis applies to
panel decisions of the Court of Appeals. Commonwealth v. Burns, 240 Va. 171, 174, 395 S.E.2d
456, 457 (1990). Panel decisions may be overruled through the en banc hearing process, see id.,
but not by other panel decisions. Accordingly, we may reverse Harper’s sentences only if
Harper is correct that the United States Supreme Court has already overruled Moses in Crawford.
Before Crawford, the United States Supreme Court held that hearsay statements were
admissible, and did not violate the Confrontation Clause, if the hearsay statements bore adequate
“indicia of reliability.” Ohio v. Roberts, 448 U.S. 56, 66 (1980). An out-of-court statement’s
reliability was considered adequate if the statement fell within a “firmly rooted hearsay
exception” or if the statement was accompanied by “a showing of particularized guarantees of
trustworthiness.” Id.
The Supreme Court overruled Roberts in Crawford. Crawford, 541 U.S. at 61-65. In
Crawford, the defendant stabbed a man and was tried for assault and attempted murder. Id. at
38. The defendant did not plead guilty, as Harper has done, but relied instead on a theory of
self-defense. To refute the defendant’s self-defense claim, during the guilt/innocence phase of
Crawford’s trial, the prosecution played a tape-recorded statement made to police by the
defendant’s wife, who could not testify at the trial because of Washington’s statutory marital
privilege. Id. Despite the finding of the Washington courts that the wife’s statement showed
particularized guarantees of trustworthiness pursuant to Roberts, the Supreme Court held that the
prosecution’s use of the wife’s statement violated the defendant’s right to confront witnesses
against him under the Confrontation Clause of the Sixth Amendment. Id. at 68.
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Part I of the Crawford opinion describes the facts of the case and the proceedings at
Crawford’s trial and in the Washington appellate courts. Id. at 38-42. Part II begins with the
recognition that the Sixth Amendment’s text does not settle the question, so an investigation into
the history of the Confrontation Clause is necessary. Id. at 42-43. Sections A and B of Part II
describe the confrontation right as it existed, respectively, in the common law of England and of
the American colonies and early Republic, prior to and around the time of the ratification of the
Sixth Amendment in 1791. Id. at 42-50.
Part III draws two inferences from this history. The first was that the goal of the
Confrontation Clause was to protect the accused from civil law criminal procedure practices,
particularly the ex parte examinations of witnesses by public officials. Id. at 51. The second
inference was that the founding generation understood the Confrontation Clause to prohibit the
admission in evidence of testimonial statements of witnesses who did not appear for trial, unless
the witness was unavailable and the defendant had a prior opportunity for cross-examination. Id.
at 53-54. In Part IV, the Court reviewed its own prior cases interpreting the Confrontation
Clause, and found that “[o]ur case law has been largely consistent with these two principles.” Id.
at 57.
Part V begins: “[a]lthough the results of our decisions have generally been faithful to the
original meaning of the Confrontation Clause, the same cannot be said of our rationales.” Id. at
60. What follows is a forceful criticism of the Court’s Confrontation Clause jurisprudence under
Roberts. The Court attacks the Roberts standard for being highly unpredictable in practice and
for departing from the original understanding of the Confrontation Clause. Specifically, the
Court emphasizes that Roberts permits admission of exactly the kind of ex parte testimonial
statements that the Confrontation Clause was meant to exclude “based on a mere judicial
determination of reliability. Id. at 62.
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Admitting statements deemed reliable by a judge is fundamentally
at odds with the right of confrontation. To be sure, the Clause’s
ultimate goal is to ensure reliability of evidence, but it is a
procedural rather than a substantive guarantee. It commands, not
that evidence be reliable, but that reliability be assessed in a
particular manner: by testing in the crucible of cross-examination.
Id. at 61. “Dispensing with confrontation because testimony is obviously reliable is akin to
dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth
Amendment prescribes.” Id. at 62. “Where testimonial evidence is at issue, however, the Sixth
Amendment demands what the common law required: unavailability and a prior opportunity for
cross-examination.” Id. at 68.
We have reviewed the Crawford opinion in some detail because Harper’s reliance on
Crawford is the essential question before us. And we find nothing in that opinion that supports
Harper’s claim that Crawford extended the applicable scope of the Confrontation Clause of the
Sixth Amendment to sentencing proceedings. The application of the Confrontation Clause to
sentencing was quite clearly not the issue before the Court. After all, the prosecution played the
recorded statements of the defendant’s wife during the guilt/innocence phase of the defendant’s
trial. Id. at 40-41. Nor does the Court’s analysis support Harper’s position. The Crawford
opinion focuses on the necessity of replacing the Roberts standard with what the Court considers
to be the original understanding of what the confrontation right is, that is, a procedural guarantee
to the accused that he may challenge testimonial evidence against him through the process of
cross-examination. The opinion does not contain a similar revision of the type of legal
proceedings to which the Confrontation Clause applies.
Moreover, the early English and American cases cited in Part II of Crawford, particularly
Raleigh’s Case, 2 How. St. Tr. 1, 15-16 (1603), provide the foundation for the Court’s argument
that the Roberts standard reflected a fundamentally mistaken view of the Confrontation Clause.
If any of these early cases applied the confrontation right to sentencing proceedings, the
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Crawford opinion does not mention it. It would be strange indeed for an opinion so anchored in
history, and attaching such importance to the original understanding of the founding generation,
to apply the Confrontation Clause to sentencing proceedings without first seeking to determine
whether, prior to the ratification of the Sixth Amendment, there existed any precedents to support
such a view.
That Crawford has not overruled our decision in Moses is also apparent from the way the
United States Supreme Court has treated its own earlier decision in Williams v. New York, 337
U.S. 241 (1949). Pursuant to statute, the trial judge in Williams had the discretion to impose the
jury’s recommendation of life imprisonment or a death sentence. Id. at 245. “In giving his
reasons for imposing the death sentence the judge discussed in open court the evidence upon
which the jury had convicted stating that this evidence had been considered in light of additional
information obtained through the court’s ‘probation department, and other sources.’” Id. at 242
(quoting People v. Williams, 83 N.E.2d 698, 699 (N.Y. 1949)). The defendant argued that his
sentence was imposed based on information “supplied by witnesses with whom the accused had
not been confronted and as to whom he had no opportunity for cross-examination or rebuttal.”
Id. at 243. Williams affirmed the defendant’s conviction.
Tribunals passing on the guilt of a defendant always have been
hedged in by strict evidentiary procedural limitations. But both
before and since the American colonies became a nation, courts in
this country and in England practiced a policy under which a
sentencing judge could exercise wide discretion in the sources and
types of evidence used to assist him in determining the kind and
extent of punishment to be imposed within limits fixed by law.
Id. at 246. If Williams remains good law, then it is clearly a serious obstacle to Harper’s claim
that his right to confront and cross-examine witnesses applied to his sentencing proceeding. Yet
the United States Supreme Court has continued to treat Williams as a valid precedent, even in
cases decided since Crawford. See United States v. Booker, 543 U.S. 220, 233 (2005); Blakely
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v. Washington, 542 U.S. 296, 304 (2004). We also believe that, if the Court had intended that its
Crawford decision should overrule Williams, it would have clearly expressed that intention. Yet
Crawford does not mention Williams at all. “Crawford does not explicitly overrule Williams.”
United States v. Littlesun, 444 F.3d 1196, 1200 (9th Cir. 2006).
We further note that each United States Court of Appeals that has considered the
application of Crawford to sentencing has reached the same conclusion. “Crawford does not
apply to sentencing.” United States v. Monteiro, 417 F.3d 208, 215 (1st Cir. 2005). See also
United States v. Luciano, 414 F.3d 174, 178-80 (1st Cir. 2005) (“Nothing in Crawford requires
us to alter our previous conclusion that there is no Sixth Amendment Confrontation Clause right
at sentencing.”); United States v. Martinez, 413 F.3d 239, 242 (2d Cir. 2005) (“Both the
Supreme Court and this Court, however, have consistently held that the right of confrontation
does not apply to the sentencing context and does not prohibit the consideration of hearsay
testimony in sentencing proceedings.”); United States v. Stone, 432 F.3d 651, 654 (6th Cir.
2005) (“Because Crawford was concerned only with testimonial evidence introduced at trial,
Crawford does not change our long-settled rule that the confrontation clause does not apply in
sentencing proceedings.”); United States v. Roche, 415 F.3d 614, 618 (7th Cir. 2005) (same);
United States v. Brown, 430 F.3d 942, 944 (8th Cir. 2005) (same); Littlesun, 444 F.3d at 1200
(same); United States v. Bustamante, 454 F.3d 1200, 1202-03 (10th Cir. 2006) (same). “The
Crawford opinion does not state that its rule applies at sentencing; it does not refer to sentencing.
While that rule may eventually be extended to the sentencing context, that has not happened
yet.” United States v. Chau, 426 F.3d 1318, 1323 (11th Cir. 2005).
On brief, Harper attempts to support his position with authority from two other
jurisdictions. See In re M.P., 220 S.W.3d 99 (Tex. App. 2007); Rodgers v. State, 948 So.2d 655
(Fla. 2006). It is true that these cases apply a confrontation right to sentencing under specific
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circumstances. But neither adopts the view that it was Crawford or any other United States
Supreme Court case decided after Moses that here compels this application: accordingly,
Harper’s reliance is misplaced. Unlike Harper’s case, Rodgers was a death penalty case, id. at
659, and the decision rested its application of Crawford to sentencing, at least in part, on the
‘“uncontroverted proposition that the Sixth Amendment right of confrontation applies to all three
phases of the capital trial.’” Id. at 663 (quoting Rodriguez v. State, 753 So.2d 29, 43 (Fla.
2000)) (emphasis added). Compare United States v. Cantellano, 430 F.3d 1142, 1146 (11th Cir.
2005) (Crawford does not extend to non-capital sentencing), with Proffitt v. Wainwright, 685
F.2d 1227, 1254-55 (11th Cir. 1982) (right to confrontation applies to capital sentencing).
In re M.P. at least endorses the view that the Confrontation Clause should apply to the
defendant’s sister’s testimony regarding S.D.’s feelings about Harper:
We do conclude, however, that at a minimum an adult criminal
defendant has a constitutional right of confrontation at sentencing:
(1) in cases in which the State seeks imposition of a sentence on
the basis of findings beyond those “reflected in the jury verdict or
admitted by the defendant”; see Booker, 543 U.S. at 232, 125
S. Ct. at 749; [State v.] McGill, 140 P.3d [930,] 942 [(Ariz. 2006)];
and (2) whenever the State calls a witness to testify at punishment.
In re M.P., 220 S.W.3d at 108 (emphasis added). However, In re M.P. rests proposition (2), not
on Crawford, but on Illinois v. Allen, 397 U.S. 337 (1970), and two Texas decisions. None of
these cases can possibly have overruled this Court’s decision in Moses; Allen was decided
eighteen years before Moses and the Texas cases are not binding on this Court. As far as we can
tell, no court, in any state, has endorsed the position necessary for our reversal of Harper’s
conviction, i.e. that Crawford and its progeny have extended the applicable scope of the
Confrontation Clause of the Sixth Amendment to sentencing proceedings.
Harper also relies on Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973), for the proposition
that a confrontation right exists at a probation revocation hearing. If a convicted defendant
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enjoys a right to confrontation before the court may order him to serve portions of a previously
suspended sentence, Harper continues, it follows that the right to confrontation must apply at the
original sentencing hearing as well. We reject this argument because its validity depends on the
assumption that the right of confrontation applicable to probation revocation hearings, like the
trial right of confrontation described in Crawford, invariably prohibits the admission into
evidence of testimonial hearsay in the absence of a prior opportunity for cross-examination. It is
clear that Gagnon did not impose a blanket prohibition on such hearsay. See id. at 782 n.5
(“While in some cases there is simply no adequate alternative to live testimony, we emphasize
that we did not in Morrissey [v. Brewer, 408 U.S. 471 (1972),] intend to prohibit use where
appropriate of the conventional substitutes for live testimony, including affidavits, depositions,
and documentary evidence.”). Moreover, even post-Crawford Virginia decisions interpreting
Gagnon mention the discretion of the trial judge to decide whether to allow hearsay testimony
during the course of a probation violation hearing. “Thus, hearsay evidence, which would
normally be inadmissible in a criminal trial, may be admitted into evidence in a revocation
hearing based on the court’s discretion.” Dickens, 52 Va. App. at 421, 663 S.E.2d at 552.
CONCLUSION
For the foregoing reasons, we affirm Harper’s sentences.
Affirmed.
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