The issue of whether Blakely errors are subject to harmless-error analysis is governed by federal law. See Connecticut v. Johnson, 460 U.S. 73, 81 n.9, 74 L. Ed. 2d 823, 830 n.9 (1983) (stating that "whether a federal constitutional error can be harmless is a federal question"). Accordingly, this Court should follow controlling precedents of the United States Supreme Court to hold that Blakely errors, like most other errors that may occur during a state criminal trial, should be analyzed for harmlessness on direct review. Nonetheless, because the Blakely error in the present case is not harmless beyond a reasonable doubt, I agree that defendant's case should be remanded for a new sentencing hearing at which a jury determines whether the offense in question was "especially heinous, atrocious, or cruel."
I.
To fully appreciate the importance of the harmless-error doctrine in American criminal jurisprudence, it is necessary to understand the historical evolution of the doctrine. Harmless-error review first appeared in Anglo-American jurisprudence with the passage of England's Judicature Act of 1873, which sought to mitigate the excesses of that country's Exchequer Rule. Wayne R. LaFave & Jerold H. Israel, Criminal Procedure ? 27.6(a), at 1160 (2d ed. 1992) [hereinafter LaFave & Israel, Criminal Procedure]. Over the course of the nineteenth century, the Exchequer Rule had evolved into a rule of nearly automatic reversal of convictions for even the most technical trial errors. Id. Recognizing the inefficiency and impracticability of such a rule, the Judicature Act instructed appellate courts "to look to the actual impact of the error upon the outcome of the proceeding, and not simply . . . assume that every error . . . was per se prejudicial." Id.
Throughout the late nineteenth and early twentieth centuries, American courts lagged behind their English counterparts and continued to apply?€"and even expand?€"a version of England's Exchequer Rule. Id.; Roger J. Traynor, The Riddle of Harmless Error 13 (1970) [hereinafter Traynor, Harmless Error]. Numerous cases were decided on the basis of trivial technical errors, and pointless new trials with predetermined outcomes became a staple of the criminal law. Harry T. Edwards, To Err Is Human, But Not Always Harmless: When Should Legal Error Be Tolerated?, 70 N.Y.U. L. Rev. 1167, 1174 (1995) (noting that without harmless-error review, numerous cases were decided on the basis of trivial technical errors).
Eventually, the harmless-error doctrine took root in America, born "out of widespread and deep [public concern] over the general course of appellate review in . . . criminal causes." Kotteakos v. United States, 328 U.S. 750, 759, 90 L. Ed. 1557, 1563 (1946). In response to this perception, the federal government and all fifty states adopted some form of statutory harmless-error rule by the mid-1960s. LaFave & Israel, Criminal Procedure ? 27.6, at 1161; Traynor, Harmless Error, at 14. North Carolina adopted its statutory harmless-error rule for civil cases in 1967, and its corresponding rule for criminal cases in 1977. N.C.G.S. ? 1A-1, Rule 61 (2003) (civil), N.C.G.S. ? 15A-1443 (2003) (criminal).
For many years, it was presumed that harmless-error analysis could not be applied to constitutional errors. Johnson, 460 U.S. at 82, 74 L. Ed. 2d at 831 (plurality opinion). In Chapman v. California, however, the United States Supreme Court held that a federal constitutional error could be harmless, provided an appellate court could "declare a belief that [the error] was harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 710-11 (1967); cf. N.C.G.S. ? 15A-1443(b) (2003) (providing that constitutional error "is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt"). Following Chapman, as the majority notes, the United States Supreme Court appeared to apply two "tests" for analyzing whether a constitutional error was harmless. See, e.g., Jeffrey O. Cooper, Searching for Harmlessness: Method and Madness in the Supreme Court's Harmless Constitutional Error Doctrine, 50 Kan. L. Rev. 309, 311-12 (2002) [hereinafter Cooper, Searching for Harmlessness]. Under one test, most recently applied in Sullivan v. Louisiana, an appellate court is to focus on the "effect [the error] had upon the guilty verdict in the case at hand." Sullivan v. Louisiana, 508 U.S. 275, 279, 124 L. Ed. 2d 182, 189 (1993). As articulated in Sullivan, this test asks "not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error." Id. Under the other test, most recently articulated in Neder v. United States, an appellate court is to engage in a counter-factual inquiry, asking whether, in light of all the evidence properly presented at trial, it is "clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error." Neder v. United States, 527 U.S. 1, 18, 144 L. Ed. 2d 35, 53 (1999); see also Harrington v. California, 395 U.S. 250, 254, 23 L. Ed. 2d 284, 287-88 (1969). In applying this standard, a court must consider, in part, whether the jury verdict was supported by "overwhelming evidence, such that the jury verdict would have been the same" had the error not occurred. Neder, 527 U.S. at 17, 144 L. Ed. 2d at 52.
The majority treats these two distinct approaches to harmless-error analysis as equally viable alternatives between which this Court may freely choose. In Neder, however, the United States Supreme Court expressly rejected the Sullivan test in favor of the counter-factual "overwhelming evidence" formulation for constitutional harmless-error analysis. Id. at 17, 144 L. Ed. 2d at 52. Specifically, the Court rejected the defendant's argument that Sullivan precluded a court applying harmless-error analysis from considering "overwhelming record evidence of [his] guilt," stating that the "proper mode of analysis" was to ask whether it was "clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error." Id. at 17-18, 144 L. Ed. 2d at 52-53. There is, therefore, only one test at this juncture to determine whether a federal constitutional error is harmless?€"the test set forth in Neder.
II.
Now an anchor of our appellate jurisprudence, harmless-error review effectuates several important public policies. First, the doctrine conserves judicial resources by preventing costly, time-consuming, and unnecessary new trials. See Chapman, 386 U.S. at 22, 17 L. Ed. 2d at 709 (stating that the doctrine "block[s] setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial"); Traynor, Harmless Error, at 14. Second, it promotes public confidence in the criminal justice system by reducing the risk that guilty defendants may go free. See Johnson v. United States, 520 U.S. 461, 470, 137 L. Ed. 2d 718, 729 (1997) ("`Reversal for error, regardless of its effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it.'" (quoting Traynor, Harmless Error, at 50); Arizona v. Fulminante, 499 U.S. 279, 308, 113 L. Ed. 2d 302, 330 (1991) (stating that the doctrine "`promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error'"). Third, it reduces delays in the criminal process resulting from unnecessary remands, thus promoting the constitutional right to a "speedy trial." Traynor, Harmless Error, at 51. Fourth, it promotes fundamental fairness in criminal proceedings by helping to ensure that criminal cases are decided on the merits, and not on the basis of minor technical defects that have no bearing on guilt or innocence. See, e.g., Fulminante, 499 U.S. at 308, 113 L. Ed. 2d at 330 (stating that "the harmless-error doctrine is essential to preserve the `principle that the central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence'"). And fifth, it promotes stability in the criminal law by reducing the risk that judges may bend or adapt substantive and procedural rules in order to avoid unwarranted reversals. See Cooper, Searching for Harmlessness, at 314.
The majority correctly notes that the right to jury trial in criminal cases is "no mere procedural formality, but a fundamental reservation of power in our constitutional structure." Blakely v. Washington, ___ U.S. ___, ____, 159 L. Ed. 2d 403, 415 (2004). It "`was designed "to guard against a spirit of oppression and tyranny on the part of rulers," and "was from very early times insisted on by our ancestors in the parent country, as the great bulwark of their civil and political liberties."'" Neder, 527 U.S. at 19, 144 L. Ed. 2d at 53 (quoting United States v. Gaudin, 515 U.S. 506, 510-11, 132 L. Ed. 2d 444, 450 (1995)). I agree wholeheartedly with this description of the vital role played by the jury in our constitutional system of government. Nonetheless, deciding whether a particular type of Sixth Amendment violation may be reviewed for harmlessness requires courts to strike a "balance between `society's interest in punishing the guilty [and] the method by which decisions of guilt are to be made.'" Id. at 18, 144 L. Ed. 2d at 53 (quoting Connecticut v. Johnson, 460 U.S. at 86, 74 L. Ed. 2d at 834 (plurality opinion) (alterations in original)). In Neder v. United States, for example, the United States Supreme Court conducted just such a balancing of interests, concluding that when a trial court erroneously fails to instruct the jury on an essential element of the crime, harmless-error review "does not fundamentally undermine the purposes of the jury trial guarantee." Id. at 19, 144 L. Ed. 2d at 53. The Court concluded that when an appellate court can readily discern from a "thorough examination of the record" that a jury would surely have found the fact in question based on the evidence presented at trial, "holding the error harmless does not `reflec[t] a denigration of the constitutional rights involved.'" Id. (quoting Rose v. Clark, 478 U.S. 570, 577, 92 L. Ed. 2d 460, 470 (1986) (alteration in original)).
III.
But determining whether a particular type of constitutional error is subject to harmless-error analysis is not simply a matter of balancing interests or assessing the importance of any particular constitutional provision. All constitutional rights are important; none should be denied or abridged. Yet the United States Supreme Court has recognized that those constitutional errors that defy harmless-error review"are the exception and not the rule," Rose v. Clark, 478 U.S. at 578, 92 L. Ed. 2d at 471, and that "most constitutional errors can be harmless," Arizona v. Fulminante, 499 U.S. at 306, 113 L. Ed. 2d at 329. Significantly, the Supreme Court has declared that if a criminal defendant is represented by competent counsel before an impartial judge, there is a "strong presumption" that any error that occurs in the course of the trial is subject to harmless-error analysis. Rose, 478 U.S. at 579, 92 L. Ed. 2d at 471 (emphasis added). Indeed, even the majority in the present appeal concedes, as it must, that exceptions to harmless error review in federal constitutional law are "rare."
The test for determining whether an error may be reviewed for harmlessness is set forth in Arizona v. Fulminante. In Fulminante, the United States Supreme Court surveyed its prior cases in which constitutional errors were reviewed for harmlessness, concluding that "[t]he common thread connecting these cases is that each involved `trial error'?€"error which occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless." 499 U.S. at 307-08, 113 L. Ed. 2d at 330. The Fulminante Court identified at least sixteen such "trial errors," including:
unconstitutionally over broad jury instructions at the sentencing stage of a capital case; admission of evidence at the sentencing stage of a capital case in violation of the Sixth Amendment Counsel Clause; jury instruction containing an erroneous conclusive presumption; jury instruction misstating an element of the offense; jury instruction containing an erroneous rebuttable presumption; erroneous exclusion of defendant's testimony regarding the circumstances of his confession; restriction on a defendant's right to cross-examine a witness for bias in violation of the Sixth Amendment Confrontation Clause; denial of a defendant's right to be present at trial; improper comment on defendant's silence at trial, in violation of the Fifth Amendment Self-Incrimination Clause; [a] statute improperly forbidding [the] trial court's giving a jury instruction on a lesser included offense in a capital case in violation of the Due Process Clause; failure to instruct the jury on the presumption of innocence; admission of identification evidence in violation of the Sixth Amendment Confrontation Clause; admission of the out-of-court statement of a non-testifying co-defendant in violation of the Sixth Amendment Confrontation Clause; confession obtained in violation of Massiah v. United States; admission of evidence obtained in violation of the Fourth Amendment; [and] denial of counsel at a preliminary hearing in violation of the Sixth Amendment Counsel Clause.
Id. at 306-07, 113 L. Ed. 2d at 329-330 (citations and parentheses omitted).
In contrast, the limited class of cases in which harmless-error analysis does not apply involve rare "structural defects in the constitution of the trial mechanism" by which the "entire conduct of the trial from beginning to end [was] obviously affected." Id. at 309-10, 113 L. Ed. 2d at 331. As distinguished from mere "trial errors," each of these constitutional violations "is a similar structural defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." Id. at 310, 113 L. Ed. 2d at 331. To date, only six constitutional errors have been deemed "structural defects": (1) complete denial of the right to counsel, (2) denial of the right to an impartial judge, (3) racial discrimination in grand jury selection (4) denial of the right to self-representation at trial, (5) denial of the right to a public trial, and (6) defective reasonable-doubt instructions. Neder, 527 U.S. at 8, 144 L. Ed. 2d at 46.
On a theoretical level, there are at least three reasons why such "structural defects" require automatic reversal. First, in each of the examples listed above, a case-by-case assessment of harmlessness would be grossly inefficient because it "is so likely" that any particular error had a prejudicial effect in any individual case "that case-by-case inquiry into prejudice is not worth the cost." Strickland v. Washington, 466 U.S. 668, 692, 80 L. Ed. 2d 674, 696 (1984). Second, the effect of each of these errors on the outcome of the trial is inherently "unquantifiable and indeterminate," such that an appellate court could not readily discern from the record whether any individual error caused actual prejudice. Sullivan, 508 U.S. at 282, 124 L. Ed. 2d at 191. Finally, and most importantly, when any of these constitutional rights are denied, "`a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.'" Fulminante, 499 U.S. at 310, 113 L. Ed. 2d at 331 (quoting Rose, 478 U.S. at 577-78, 92 L. Ed. 2d at 470 (citation omitted)).
Together, these reasons inform the federal constitutional rule that so long as a criminal defendant was represented by counsel before an impartial judge, there is a"strong presumption" that any other error is subject to harmless-error analysis. Rose, 478 U.S. at 579, 92 L. Ed. 2d at 471. When a criminal defendant is tried without counsel or before a biased judge, it is almost impossible to gauge the effect of the error on the outcome of the trial, and the likelihood of prejudice is so high that a rule of automatic reversal is more efficient than a case-by-case inquiry into harmlessness. Id. at 577-79, 92 L. Ed. 2d at 470-71. But when a defendant is competently represented before an impartial tribunal, the adversarial process will generally provide a record from which an appellate court can adequately gauge the prejudicial effect of any errors. Id. at 579-80, 92 L. Ed. 2d at 471-72 (noting that unconstitutional burden-shifting, unlike the denial of counsel or judicial bias, does not affect composition of the record and thus is amenable to harmless-error review). Under such circumstances, appellate review will adequately ensure that criminal convictions are factually accurate and that criminal punishments are fundamentally fair. Id. at 579, 92 L. Ed. 2d at 471 ("Where a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed.").
Applying these principles, it is clear that Blakely error is more analogous to the larger class of "trial errors" than it is to the limited class of "structural defects." First, it can hardly be said that a judge "is so likely" to find facts a jury would not find that "case-by-case inquiry" in to harmlessness "is not worth the cost." Strickland, 466 U.S. at 692, 80 L. Ed. 2d at 696. Although there may be individual cases in which a judge finds facts a jury would not, there is no reason to presume that such a discrepancy would be so common that harmless-error review is inefficient as a general rule.8 To the contrary, it can be expected that in most cases, a rational jury will reach the same factual determinations as a rational judge, based on the evidence presented and arguments of adversarial counsel. As the United States Supreme Court stated in Schriro v. Summerlin, a case decided the same day as Blakely, it is "implausible" to suggest "that judicial fact finding so `seriously diminishe[s]' accuracy as to produce an `"impermissibly large risk"' of injustice." Schriro v. Summerlin, ___ U.S. ___, ___, 159 L. Ed. 2d 442, 451 (2004) (alteration in original) (citation omitted). Second, the effect of a Blakely error is not inherently "unquantifiable and indeterminate," Sullivan, 508 U.S. at 282, 124 L. Ed. 2d at 191, as an appellate court can ordinarily discern from the record whether the evidence against the defendant was so "overwhelming" and "uncontroverted" that any rational fact-finder would have found the disputed aggravating factors beyond a reasonable doubt, Neder, 527 U.S. at 9, 18, 144 L. Ed. 2d at 47, 53. Third, when an appellate court can readily determine that a jury would have found an aggravating factor beyond a reasonable doubt, the criminal process has served its primary function "`as a vehicle for determination of guilt or innocence,'" and the punishment imposed in light of the aggravating factors must be considered "`fundamentally fair.'" Fulminante, 499 U.S. at 310, 113 L. Ed. 2d at 331 (citations omitted).
IV.
The foregoing analysis demonstrates that application of the harmless-error doctrine to Blakely errors comports with the theoretical contours of that doctrine. But determining whether Blakely error is a "trial error" or a "structural defect" does not depend entirely on the application of presumptions, policy considerations, or abstract principles. Rather, clearly established precedent of the United States Supreme Court mandates the inescapable conclusion that Blakely errors are "trial errors" subject to harmless-error review.
In Neder v. United States, the United States Supreme Court held that the trial court's unconstitutional failure to submit an essential element of the crime to the jury was subject to harmless-error analysis. 527 U.S. at 4, 144 L. Ed. 2d at 44. Although the omission of the element from the jury instructions impermissibly "infringe[d] upon the jury's fact finding role" in violation of the Sixth Amendment's jury trial guarantee, id. at 18, 144 L. Ed. 2d at 52, the Court held that the error was not a "structural" one that "necessarily render[ed] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence." Id. at 9, 144 L. Ed. 2d at 47. Accordingly, the Court reviewed the Sixth Amendment violation in Neder's case for harmlessness. Id. at 15-20, 144 L. Ed. 2d at 51-53. The Court concluded "that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error." Id. at 17, 144 L. Ed. 2d at 52. Thus, the Court concluded, the constitutional error was "properly found to be harmless." Id. at 17, 144 L. Ed. 2d at 52.
Admittedly, the instant case deals with the failure to submit an aggravating factor, as opposed to an essential element, for jury determination. But this distinction provides no viable basis for distinguishing Neder, as the Blakely line of cases9 firmly establishes the principle that aggravating factors are the "functional equivalent" of essential elements of the crime for purposes of the Sixth Amendment right to jury trial. Apprendi v. New Jersey, 530 U.S. 466, 494 n.19, 147 L. Ed. 2d 435, 457 n.19 (2000) ("[W]hen the term `sentence enhancement' is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict.") (emphasis added); see also Blakely, ___ U.S. at ___, 159 L. Ed. 2d at 415-16; Ring v. Arizona, 536 U.S. 584, 602, 153 L. Ed. 2d 556, 572 (2002). Neder, therefore, is controlling here, and Blakely errors are subject to harmless-error analysis.10 The majority contends that Sullivan v. Louisiana, rather than Neder, controls our disposition of the harmless-error issue. I acknowledge that there is language in Sullivan that appears to support the majority's position. But subsequent decisions of the United States Supreme Court establish that the holding of Sullivan is more limited than some of its language suggests, and that Neder, not Sullivan, is dispositive here.
In Sullivan, the United States Supreme Court held that the trial court's defective reasonable-doubt instruction was a "structural defect" not subject to harmless-error inquiry. 508 U.S. at 281-82, 124 L. Ed. 2d at 190-91. The Court emphasized that the trial court's "misdescription of the burden of proof" had "vitiate[d] all the jury's findings," such that a proper jury verdict "was never in fact rendered." Id. at 279, 281, 124 L. Ed. 2d at 189, 190. Because there was no jury finding of guilty-beyond-a-reasonable-doubt of any fact essential to the defendant's punishment, an appellate court could "only engage in pure speculation" as to "what a reasonable jury would have done." Id. at 281, 124 L. Ed. 2d at 190. Under such circumstances, the Court concluded, "to hypothesize [on appellate review] a guilty verdict that was never in fact rendered . . . would violate the jury-trial guarantee." Id. at 279, 124 L. Ed. 2d at 189. In the instant case, the majority reasons that harmless-error analysis does not apply to Blakely errors "[b]ecause, as in Sullivan, the jury's findings have been vitiated in total," as "aggravating factors are completely withdrawn from jury review" by our structured sentencing system. This analysis, however, misapprehends the holding of Sullivan, ignores subsequent opinions clarifying that holding, and essentially recapitulates an argument expressly rejected by the United States Supreme Court in Neder.
The defendant in Neder cited Sullivan in support of his argument that the failure to submit one essential element of the crime for jury determination was not subject to harmless-error review. Neder, 527 U.S. at 11, 144 L. Ed. 2d at 48. Specifically, the defendant argued that "where the constitutional error . . . prevents the jury from rendering a `complete verdict' on every element of the offense. . . . the basis for harmless-error review `"is simply absent."'" Id. (quoting Brief for Petitioner at 7). The United States Supreme Court rejected this argument and distinguished Sullivan, stating that "the absence of a `complete verdict' on every element of the offense" establishes a violation of the Sixth Amendment right to jury trial, but does not address "whether the error is subject to harmless-error analysis." Id. at 12, 144 L. Ed. 2d at 49. Although it acknowledged that it "would not be illogical to extend the reasoning of Sullivan . . . to a failure to instruct on an element of the crime," the Court declined to "veer away from settled precedent to reach such a result." Id. at 15, 144 L. Ed. 2d at 50-51.
In Mitchell v. Esparza, the Court further clarified the jurisprudential relationship between Sullivan and Neder. The Court explained that in Neder it "explicitly distinguished Sullivan because the error in Sullivan?€"the failure to instruct the jury that the State must prove the elements of an offense beyond a reasonable doubt?€"" `vitiate[d] all the jury's findings,' "whereas, the trial court's failure to instruct the jury on one element of an offense did not." Mitchell v. Esparza, 540 U.S. 12, 16, 157 L. Ed. 2d 263, 270 (2003) (per curiam) (citations omitted). Thus, in Neder, "[w]here the jury was precluded from determining only one element of an offense, [the Court] held that harmless-error review is feasible." Id.
In light of Mitchell, it is clear that Neder, not Sullivan, controls with respect to the application of harmless-error doctrine to Blakely errors. Here, as in Neder, the constitutional error consisted in the partial infringement of the right to jury trial. Like the constitutional error in Neder, the failure to submit one aggravating factor to the jury for determination did not "vitiate[] all the jury's findings," and thus does not constitute a structural defect requiring automatic reversal under Sullivan. Sullivan, 508 U.S. at 281, 124 L. Ed. 2d at 190.
By unanimous jury verdict, the defendant in the instant case was convicted of felonious child abuse inflicting serious bodily injury11 under N.C.G.S. ? 14-318.4. Thus, the following essential elements were necessarily found by a jury beyond a reasonable doubt: (1) that defendant was a "parent or any other person providing care to or supervision of [the victim]," (2) that the victim was a "child less than 16 years of age" at the time of the assault, (3) that the defendant "inflict[ed] serious bodily injury" on the child, and (4) that the defendant did so "intentionally." N.C.G.S. ? 14-318.4(a3) (2003). It makes no sense to maintain that these jury findings were "vitiated in total" by the trial court's failure to submit the one aggravating factor in this case for jury determination. Although that failure undoubtedly infringed upon defendant's Sixth Amendment right to jury trial, four of the five facts essential to the punishment he received (the four elements of the crime) were found by a jury beyond a reasonable doubt. Like the defendant in Neder, the defendant in the instant case "was tried before an impartial judge, under the correct standard of proof and with the assistance of counsel," and "a fairly selected, impartial jury was instructed to consider all of the evidence and argument in respect to [his] defense" against the charges presented. 527 U.S. at 9, 144 L. Ed. 2d at 47. Thus, as in Neder, the unconstitutional failure to submit one factual issue to the jury?€"in this case, the aggravating factor?€""did not render [the defendant's] trial `fundamentally unfair.'" Id.
As a general matter, a defendant alleging Blakely error has ordinarily received a jury trial in which a jury found most of the facts essential to punishment?€"the designated "elements" of the crime. As the Arizona Court of Appeals aptly stated in a recent opinion, "Blakely error is much more akin to the error in Neder than the error in Sullivan," because a defendant alleging Blakely error "has already had a trial in which a jury has determined beyond a reasonable doubt that he or she is guilty." State v. Henderson, 209 Ariz. 300, ___, 100 P.3d 911, 920 (Ct. App. 2004) (relying on Mitchell in holding that Neder, not Sullivan, applies to Blakely errors). Blakely error is "closer to failing to properly instruct on one element of an offense (which casts doubt on that one element) than it is to failing to properly instruct on the burden of proof as to every element of the offense (which casts doubt on the entire verdict)." Id. Accordingly, the failure to submit an aggravating factor for jury determination, like the failure to submit an essential element for jury determination, is subject to harmless-error review.12
V.
The majority's reluctance to apply the harmless-error doctrine to Blakely errors, apparently born out of a healthy respect for the role of the jury, is understandable but ultimately misguided. First, contrary to the majority's opinion, the application of harmless-error principles to Blakely errors does not constitute impermissible "speculation" as to what a jury might have done. To be sure, "any time an appellate court conducts harmless-error review it necessarily engages in some speculation as to the jury's decision making process; for in the end no judge can know for certain what factors led to the jury's verdict." Sullivan, 508 U.S. at 284, 124 L. Ed. 2d at 192 (Rehnquist, C.J., concurring). But this "speculation" is restrained by rigorous judicial standards and an exacting burden of proof: an appellate court reviewing for harmless error must "conduct a thorough examination of the record" to determine whether a constitutional error was harmless "beyond a reasonable doubt." Neder, 527 U.S. at 19, 144 L. Ed. 2d at 53. If the reviewing court "cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error?€"for example, where the defendant contested the [factual determination at issue] and raised evidence sufficient to support a contrary finding?€"it should not find the error harmless." Id. Second, neither Blakely error itself nor the application of the harmless-error doctrine to Blakely errors presents, in the majority's words, "the same defect as a directed verdict on the defendant's guilt or innocence." It is well settled that a trial court may not direct a verdict against a criminal defendant, "`regardless of how overwhelming[] the evidence'" against him, and that such an error may not be reviewed for harmlessness. Rose, 478 U.S. at 578, 92 L. Ed. 2d at 471 (quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73, 51 L. Ed. 2d 642, 652 (1977)). As the United States Supreme Court explained in Rose, when the right to a jury trial is "altogether denied, the State cannot contend that the deprivation was harmless because . . . the error in such a case is that the wrong entity judged the defendant guilty." Id. Thus, the Sixth Amendment does not permit a judge to completely usurp the role of the jury by directing a verdict for the state. Id. As the United States Supreme Court later clarified in Neder, however, the partial deprivation of the right to jury trial does not implicate the rule set out in Rose and is subject to harmless-error analysis. Neder, 527 U.S. at 17 n.2, 144 L. Ed. 2d at 52 n.2. Because Blakely errors, like Neder errors, do not involve total deprivation of the right to a jury trial, they are not tantamount to directed verdicts for the state.
Nor is the application of harmless-error review particularly problematic in the context of Blakely errors. In Neder, the United States Supreme Court noted that an appellate court's application of harmless-error review does not implicate the same Sixth Amendment concerns as a trial judge's usurpation of the jury's role in the first instance. Id. at 17, 144 L. Ed. 2d at 52 (rejecting the defendant's argument that application of harmless-error analysis to the trial court's erroneous reasonable-doubt instruction would "dispense with trial by jury and allow judges to direct a guilty verdict"). The Court explained that a court applying the harmless-error doctrine does not "`become in effect a second jury to determine whether the defendant is guilty.'" Id. at 19, 144 L. Ed. 2d at 53 (quoting Traynor, Harmless Error, at 21); cf. Smith v. Dixon, 14 F.3d 956, 978 (4th Cir.) ("No authority relied on by [the defendant] supplies support for the proposition that harmless-error analysis involves a weighing of factual evidence that this court is not authorized to conduct."), cert. denied, 513 U.S. 841, 130 L. Ed. 2d 72 (1994). Rather, an appellate court, "in typical appellate-court fashion, asks whether the record contains evidence that could rationally lead to a contrary finding with respect to the [factual determination at issue]. If the answer to that question is `no,' holding the error harmless does not `reflect a denigration of the constitutional rights involved.'" Neder, 527 U.S. at 19, 144 L. Ed. 2d at 53 (quoting Rose, 478 U.S. at 577, 92 L. Ed. 2d at 470). In short, when an appellate court engages in harmless-error review, it does not unconstitutionally usurp the role of the jury or otherwise undermine the spirit of the Sixth Amendment.
VI.
The majority relies heavily on State v. Hughes, ___ Wash. 2d ___, 110 P.3d 192 (2005), a recent case in which the Washington Supreme Court held that Blakely errors are not subject to harmless-error review. As noted in the majority's opinion, the Hughes court relied on Sullivan to reach its holding that Blakely errors cannot be reviewed for harmlessness. Hughes, ___ Wash. 2d at ___, 110 P.3d at ___. Specifically, Hughes relied on Sullivan's reasoning that harmless-error review cannot be applied to any constitutional error that prevents the jury from returning a verdict of guilty-beyond-a-reasonable-doubt, since the inquiry "`whether the same verdict of guilty-beyond-a-reasonable doubt would have been rendered absent the constitutional error is utterly meaningless.'" Id. at ___, 110 P.3d at ___ (quoting Sullivan, 508 U.S. at 280, 124 L. Ed. 2d at 189-90). Quoting extensively from Sullivan, the Hughes court further stated that the "`illogic'" of applying harmless-error analysis in the absence of an "`actual finding of guilty beyond a reasonable doubt'" was evident: "`[t]here is no object, so to speak, upon which harmless-error scrutiny can operate.'" Id. at ___, 110 P.3d at ___ (quoting Sullivan, 508 U.S. at 280, 124 L. Ed. 2d at 189-90). Applying these principles, the court concluded that it would be equally "illogical" to apply the harmless-error doctrine to Blakely errors. Id. at ___, 110 P.3d at ___.
Admittedly, the above-quoted language from Sullivan lends logical support for the Hughes court's holding on the harmless-error issue. That language, however, was specifically disavowed in Neder. In Neder, the United States Supreme Court unequivocally stated that this "strand of the reasoning in Sullivan . . . cannot be squared with [the Court's] harmless-error cases." 527 U.S. at 11, 144 L. Ed. 2d at 48. Noting that the Court had previously applied harmless-error review in at least three cases "where the jury did not render a `complete verdict' on every element of the offense," the Court repudiated the "alternative reasoning" in Sullivan that precludes application of harmless-error analysis where there has not been an "actual" jury verdict on every element of the crime. Id. at 11-13, 144 L. Ed. 2d at 48-49. It is now settled, under Neder, that a partial deprivation of the right to jury trial may be reviewed for harmlessness. Id. at 8-9, 144 L. Ed. 2d at 46-47; see also id. at 36, 144 L. Ed. 2d at 64 (Scalia, J., dissenting) (accusing the majority of "casting Sullivan aside"). And Sullivan has been limited to its primary rationale: that defective reasonable-doubt instructions cannot be reviewed for harmlessness because they "vitiate[] all the jury's findings." Sullivan, 508 U.S. at 281, 124 L. Ed. 2d at 190.
Perhaps for this reason, Hughes appears to be an outlier among appellate court decisions addressing the Blakely/harmless-error issue. My research reveals that the majority of courts to have considered this issue have agreed that Blakely errors are subject to harmless-error review.13 Moreover, in United States v. Cotton, the United States Supreme Court expressly rejected the argument that unpreserved Apprendi errors are "structural errors" requiring automatic reversal.14 United States v. Cotton, 535 U.S. 625, 632-34, 152 L. Ed. 2d 860, 868-69 (2002). Similarly, every federal circuit, along with many state appellate courts, has held that Apprendi errors are subject to harmless-error review.15 Given that Blakely was at most an extension, if not merely a direct application of Apprendi, see Blakely v. Washington, ___ U.S. at ___, 159 L. Ed. 2d at 412, the only logical conclusion is that Blakely errors, like Apprendi errors, are also subject to both plain-error and harmless-error review.16 See State v. Henderson, 209 Ariz. at ___, 100 P.3d at 917.
VII.
Although I disagree with the majority's reasoning, I agree with its ultimate disposition in this particular case: defendant is entitled to a new sentencing hearing in which a jury, not a judge, must make a factual determination as to whether the offense was "especially heinous, atrocious, or cruel." I reach this result because, applying the harmless-error standard of Neder to the facts presented, I conclude that the Blakely violation in the instant case was not harmless beyond a reasonable doubt.
As an initial matter, the somewhat subjective nature of the N.C.G.S. ? 15A-1340.16(d)(7) "heinous, atrocious, or cruel" aggravating factor may, depending on the specific facts of each case, render application of the harmless-error standard problematic. Plainly, it is more difficult for an appellate court, reviewing a cold record, to determine beyond a reasonable doubt that a jury would have found an offense "especially heinous" than it is for an appellate court to determine that the defendant "knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person," N.C.G.S. ? 15A-1340.16(d)(8) (2003), or "committed the offense while on pretrial release on another charge," N.C.G.S. ? 15A-1340.16(d)(12). This is not to say, however, that a judicial finding that an offense was "heinous, atrocious, or cruel" can never be harmless beyond a reasonable doubt. Even in the context of capital sentencing proceedings, we have never held that the subjectivity of the "heinous, atrocious, or cruel" aggravator precluded appellate courts from considering whether the evidence was sufficient to support findings of that factor. See, e.g., State v. Golphin, 352 N.C. 364, 479-81, 533 S.E.2d 168, 242-43 (2000), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001); State v. Huffstetler, 312 N.C. 92, 115-16, 322 S.E.2d 110, 124-25 (1984), cert. denied, 471 U.S. 1009, 85 L. Ed. 2d 169 (1985); State v. Oliver, 309 N.C. 326, 342-49, 307 S.E.2d 304, 316-20 (1983). Certainly in some cases the facts speak for themselves, such that no rational juror would fail to find the offense was "especially heinous, atrocious, or cruel." Cf. State v. Perkins, 345 N.C. 254, 288-89, 481 S.E.2d 25, 40-41 (defendant raped and murdered a seven-year-old girl in front of the girl's grandmother and three-year-old brother; no plain error in trial court's failure to give a limiting instruction on the "heinous, atrocious, or cruel" aggravator), cert. denied, 522 U.S. 837, 139 L. Ed. 2d 64 (1997). Indeed, this Court and the United States Court of Appeals for the Fourth Circuit have both previously applied harmless-error analysis to uphold the "heinous, atrocious, or cruel" aggravator in capital sentencing proceedings. Smith v. Dixon, 14 F.3d at 981 (holding that an unconstitutionally vague jury instruction on the "especially heinous, atrocious, or cruel" (e)(9) aggravator was harmless in light of the "overwhelming force of the evidence"); State v. Burr, 341 N.C. 263, 309, 461 S.E.2d 602, 627 (1995) ("Based on the overwhelming amount of evidence that the killing was especially heinous, atrocious, or cruel, assuming arguendo the admission of this statement was error, any such error was necessarily harmless beyond a reasonable doubt."), cert. denied, 517 U.S. 1123, 134 L. Ed. 2d 526 (1996); cf. State v. Fletcher, 354 N.C. 455, 482, 555 S.E.2d 534, 551 (2001) (rejecting argument that counsel's admission of the (d)(7) aggravator rendered his performance deficient because "[g]iven the overwhelming evidence that this murder was especially heinous, atrocious, or cruel, counsel could reasonably have decided upon a strategy of conceding this aggravating circumstance to gain credibility with the jury"), cert. denied, 537 U.S. 846, 154 L. Ed. 2d 73 (2002). Accordingly, I believe that the "especially heinous, atrocious, or cruel" (d)(7) aggravator is, as a general proposition, subject to harmless-error review.
Reviewing this particular aggravating factor for harmlessness, however, I believe that the evidence presented was neither "uncontroverted" nor "overwhelming" and thus that the Blakely error in the instant case was not harmless beyond a reasonable doubt. First, the evidence presented by the state in support of its contention that defendant intentionally burned his child?€"the basis for the "heinous, atrocious, or cruel" aggravator?€"was far from "uncontroverted." There were no eyewitnesses to the events in question, and the state's evidence consisted mainly of testimony from a physician assistant that the burns did not appear to be accidental. Defendant, however, strenuously maintained his innocence throughout his arrest, interrogation, and every stage of these proceedings.17 A jury was certainly entitled to disregard defendant's testimony. But as we have often stated, issues of witness credibility are uniquely the province of the jury. See, e.g., State v. Hyatt, 355 N.C. 642, 666, 566 S.E.2d 61, 77 (2002), cert. denied, 537 U.S. 1133, 154 L. Ed. 2d 823 (2003).
Second, the state's evidence in support of the (d)(7) aggravator, while sufficient to sustain a guilty verdict, was far from "overwhelming." The evidence against the defendant consisted primarily of the testimony of Thomas McLaughlin, P.A. (McLaughlin), the physician assistant who treated the victim's burns. McLaughlin had approximately twenty-seven years of experience as a physician assistant and had worked at the hospital emergency room for six years. He did not possess a license to practice medicine or a medical degree. Although he had no specialized burn training, McLaughlin found that the child had either second-or third-degree burns on his hand, wrist, stomach, and knee. Based on the severity of the burns and his belief that a person would not hold on to a hot object long enough to cause burns that deep, McLaughlin opined that the burns were caused by someone holding an object against the child's skin. He also opined that the shapes of the burns were not consistent with a burn suffered from grabbing a curling iron. Because the burns were round and not linear in shape, McLaughlin concluded that they were most likely caused by a round object.
While this testimony certainly supports the inference that defendant intentionally inflicted multiple burns on his child?€"the factual predicate for the (d)(7) aggravator in this case?€"the evidence in support of that factor is far from "overwhelming." Had the Blakely error not occurred, a jury could certainly have decided to reject all or part of McLaughlin's testimony in light of (1) his relative inexperience with burns, (2) his lack of a medical degree or license to practice medicine, and (3) defendant's consistent and strenuous testimony that he did not harm the child. In addition, a jury could rationally have determined that defendant's bandaging of the child's hand suggested he was unaware of the other burns on the child's body and that he acted compassionately, not in an "especially heinous, atrocious, or cruel" manner.
Moreover, the "heinous, atrocious, or cruel" aggravator is complicated by the requirement that the offense be "especially" heinous, atrocious, or cruel. N.C.G.S. ? 15A-1340.16(d)(7) (2003) (emphasis added). As we have previously explained, the aggravator applies only if "the facts of the case disclose excessive brutality, or physical pain, psychological suffering, or dehumanizing aspects not normally present in [the] offense." State v. Blackwelder, 309 N.C. 410, 414, 306 S.E.2d 783, 786 (1983). Because the offense of felonious child abuse inflicting serious injury inherently involves "brutality, . . . physical pain, . . . [and] dehumanizing aspects," it is particularly difficult to apply this standard in the instant case. Indeed, a comparison of this state's appellate precedents demonstrates that application of the Blackwelder standard often requires fine distinctions that do not readily lend themselves to harmless-error analysis. See, e.g., State v. Ahearn, 307 N.C. 584, 599, 300 S.E.2d 689, 698 (1983) (evidence that baby had been struck on at least three occasions, tied to his crib, and placed under a mattress factually supported defendant's guilty plea of felonious child abuse, but "f[ell] short of supporting a finding that the offense was especially heinous, atrocious or cruel"); State v. Newton, 82 N.C. App. 555, 560, 347 S.E.2d 81, 84-85 (1986) (defendant's repeatedly striking his wife in the presence of their child and refusal to get her medical attention supported his conviction for assault with a deadly weapon with intent to kill inflicting serious injury, but did not "represent brutality beyond that found in other [such] assaults"), disc. rev. denied, 318 N.C. 699, 351 S.E.2d 756 (1987).
Based upon the evidence of record, the (d)(7) aggravator could be found in the instant case by a rational jury applying the beyond-a-reasonable-doubt standard. However, o n the facts presented here, I cannot conclude that this particular Blakely error was harmless beyond a reasonable doubt. Therefore, and on these grounds only, I agree that the instant case should be remanded to the Court of Appeals for further remand to the trial court with instructions to submit the (d)(7) aggravating factor for determination by a jury. Although, undoubtedly, judicial fact-finding of aggravating factors violates the federal constitutional rule enunciated in Blakely v. Washington, United States Supreme Court precedent also compels application of the harmless-error doctrine to Blakely violations. I have no doubt that my colleagues in the majority are motivated by the noblest of intentions. Nevertheless, the majority's invocation of "structural error" to Blakely violations is erroneous under federal constitutional principles which govern Blakely violations.
Moreover, the public record reflects that 75 "Blakely cases" are now pending for disposition in our 15-member intermediate appellate court, the North Carolina Court of Appeals. To put this in perspective, the Court of Appeals has issued a total of 738 opinions so far in 2005. And the burden on our legal and judicial system does not end there. Each improvident "Blakely remand" to the trial court, in North Carolina and every other state, necessarily entails the application of additional prosecutorial, legal, and other "justice system" resources. Where the Blakely error in any such case is "harmless beyond a reasonable doubt," these resources are, in turn, potentially unavailable to redress prejudicial legal error.
With that said, I fully concur in our remand order based on the particular facts of the instant case. But taxing our already overburdened judicial and legal resources through indiscriminate application of a categorical rule accomplishes nothing from a practical perspective, elevates form oversubstance, and unnecessarily undermines the salutary objectives that are undeniably effectuated by application of harmless-error review. Accordingly, I dissent from the majority's holding that Blakely errors are categorically unamenable to harmless-error review. In all other respects, I concur in the majority opinion.
Chief Justice LAKE and Justice NEWBY join in this concurring and dissenting opinion.
Of course, any fact-finder?€"judge or jury?€"is more likely to find a given sentencing factor when applying the "preponderance" standard than when applying the "beyond a reasonable doubt" standard as required by Blakely. But there is no empirical evidence to suggest that it is "so likely" that Blakely violations result in sentencing enhancements that would not otherwise be found that "case-by-case inquiry" into harmlessness "is not worth the cost." Strickland, 466 U.S. at 692, 80 L. Ed. 2d at 696. Nor is there any reason to presume that appellate courts would, as a general matter, have difficulty reviewing the record evidence under a more stringent, Blakely-compliant burden of proof. After all, careful application of the correct standard of review is a hallmark of appellate adjudication. See 5 Am. Jur. 2d Appellate Review ? 559 (1995) (stating that "the standard of review is the keystone of appellate decision making").
What is now referred to as the Blakely rule had its genesis in Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311 (1999), was first articulated in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000), and has been applied in Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556 (2002) and United States v. Booker, ___ U.S. ___, 160 L. Ed. 2d 621 (2005). Succinctly stated, the Blakely rule provides that a criminal defendant has a constitutional "right to have the jury find the existence of `"any particular fact"' that the law makes essential to his punishment." Booker, ___ U.S. at ___, 160 L. Ed. 2d at 642 (citing Apprendi, Ring, and Blakely (internal citations omitted)); see also Blakely, ___ U.S. at ___, 159 L. Ed. 2d at 420 ("As Apprendi held, every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment."). In examining a criminal sentence for a Blakely violation, the dispositive question "is one not of form, but of effect." Apprendi, 530 U.S. at 494, 147 L. Ed. 2d at 457. Thus, "[i]f a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact?€"no matter how the State labels it?€"must be found by a jury beyond a reasonable doubt." Ring, 536 U.S. at 602, 153 L. Ed. 2d at 572 (emphasis added); see also Blakely, ___ U.S. at ___, 159 L. Ed. 2d at 415 (rejecting the argument that "the jury need only find whatever facts the legislature chooses to label elements of the crime, and that those it labels sentencing factors ?€" no matter how much they may increase the punishment ?€" may be found by the judge").
This application of Neder may be summarized by the following syllogism: (1) Under Neder, the failure to submit an essential element of the crime to the jury, though violative of the Sixth Amendment right to jury trial, is subject to harmless-error analysis; (2) The Blakely line of cases establishes that aggravating factors are the "functional equivalent" of essential elements for purposes of the right to jury trial; (3) Therefore, the failure to submit an aggravating factor for jury determination is also subject to harmless-error inquiry. At least three of the appellate courts to have directly considered application of the harmless-error doctrine to Blakely errors have followed this reasoning in holding that Blakely errors may be reviewed for harmlessness. See, e.g., State v. Henderson, 209 Ariz. 300, ___, 100 P.3d 911, 917-21 (Ct. App. 2004), disc. rev. granted in part, 2005 Ariz. LEXIS 36 (Mar. 23, 2005) (No. 1 CA-CR 03-0920); State v. McDonald, 136 N.M. 417, ___, 99 P.3d 667, 669-70 (2004); State v. Walters, 2004 WL 2726034, at **22-24 (Tenn. Crim. App. Nov. 30, 2004) (No. M2003-03019-CCA-R3CD) (unpublished). If there is a flaw in this rather straight-forward analysis, I would expect the majority to shed some light on it. But nowhere in its opinion does the majority respond directly to this argument, which is clearly and forcefully articulated in the state's brief. Rather, the majority summarily "disagree[s]" with the state's argument before embarking on its own independent analysis of the question presented.
"Serious bodily injury" is defined as "bodily injury that creates a substantial risk of death, or that causes serious permanent disfigurement, coma, a permanent or protracted condition that causes extreme pain, or permanent or protracted loss or impairment of the function of any bodily member or organ, or that results in prolonged hospitalization." N.C.G.S. ? 14-318.4(a3) (2003).
This analysis is entirely consistent with the United States Supreme Court's decision in Rose v. Clark, 478 U.S. 570, 92 L. Ed. 2d 460 (1986), which is cited several times by the majority. In Rose, the Court stated that when the Sixth Amendment right to jury trial is "altogether denied, the State cannot contend that the deprivation was harmless because the evidence established the defendant's guilt; the error in such a case is that the wrong entity judged the defendant guilty." 478 U.S. at 578, 92 L. Ed. 2d at 471 (emphasis added). As noted above, however, in a typical Blakely case, the jury has already determined most, if not all, of the facts essential to punishment. Hence, the Sixth Amendment right to jury trial has not been "altogether" denied, and harmless-error analysis ispresumptively applicable under Rose itself. See id. at 579, 92 L. Ed. 2d at 471 (discussing the "strong presumption" that a federal constitutional error is subject to harmless-error analysis).
See United States v. Riccardi, 405 F.3d 852, 875 (10th Cir. 2005) (concluding that Sixth Amendment Blakely/Booker error was harmless in light of "overwhelming" evidence supporting the sentencing judge's fact-finding); United States v. Paz, 405 F.3d 946 (11th Cir. 2005) (per curiam) (applying harmless-error doctrine to Blakely error); United States v. Ameline, 400 F.3d 646, 652 (9th Cir.) (noting that under Booker "not all cases would warrant a new sentencing hearing because any error might be harmless"), vacated and reh'g en banc granted, 401 F.3d 1007 (9th Cir. 2005); United States v. Coumaris, 399 F.3d 343, 351 (D.C. Cir. 2005) (stating that Booker challenge was "governed by the harmless error standard appropriate for constitutional error"); United States v. Sharpley, 399 F.3d 123, 127 (2d Cir. 2005) (describing Blakely and Booker error as a "prototypical example of harmless error" where defendant received a "statutory mandatory minimum" sentence); United States v. Pittman, 388 F.3d 1104, 1109 (7th Cir. 2004) (analyzing Blakely claim for plain error and adding in dictum that the claim "would fall short under harmless error review as well"), vacated on other grounds and cert. granted by ___ U.S. ___, 161 L. Ed. 2d 764 (2005); United States v. Mincey, 380 F.3d 102, 105 (2d Cir. 2004) (per curiam) (reviewing a "Blakely-type claim" for harmless error), vacated and cert. granted by Ferrell v. United States, ___ U.S. ___, 160 L. Ed. 2d 1053 (2005); State v. Henderson, 209 Ariz. 300, ___, 100 P.3d 911, 920-22 (Ct. App. 2004) (holding that Blakely errors are subject to harmless-error analysis and citing other cases in support of that proposition), disc. rev. granted in part, 2005 Ariz. LEXIS 36 (Mar. 23, 2005) (No. 1 CA-CR-03-0920); State v. Martinez, 209 Ariz. 280, ___, 100 P.3d 30, 32 (Ct. App. 2004) ("Further, we hold that Blakely error is subject to harmless error or fundamental error analysis and may or may not require reversal based on the facts of a particular case."), disc. rev. granted, 2005 Ariz. LEXIS 16 (Feb. 8, 2005) (No. 1 CA-CR-03-0728); People v. Amons, 22 Cal. Rptr. 3d 908, 916-17, 125 Cal. App. 4th 855, 867-68 (Ct. App. 2005) (holding that Blakely errors are subject to harmless-error analysis and citing numerous cases), disc. rev. denied, 2005 Cal. LEXIS 4345 (Apr. 20, 2005) (No. A105374); Padilla v. State, 822 N.E.2d 288, 291 (Ind. Ct. App. 2005) (applying harmless error analysis to Blakely claim); Holden v. State, 815 N.E.2d 1049, 1059-60 (Ind. Ct. App. 2004) (applying harmless-error analysis to Blakely claim); State v. Lowery, 160 Ohio App. 3d 138, 154, 826 N.E.2d 340, 352-53 (2005) (applying harmless-error analysis to Blakely claim); State v. Ginn, 2005 Tenn. Crim. App. LEXIS 313, at **24, 32-33 (Mar. 31, 2005) (No. M2003-02330-CCA-R3-CD) (unpublished) (stating that Blakely error is subject to harmless-error review); State v. Walters, 2004 Tenn. Crim. App. LEXIS 1053, at *62 (Nov. 30, 2004) (No. M2003-03019-CCA-R3-CD) (unpublished) (holding that Blakely error is subject to harmless-error review), appeal denied, 2005 Tenn. LEXIS 264 (Mar. 21, 2005).
The Court in Cotton went on to apply harmless-error principles in the course of its plain-error review, noting that even though the grand jury's indictment did not allege the amount of drugs involved in the crimes charged, "[t]he evidence that the conspiracy involved at least 50 grams of cocaine base was `overwhelming' and `essentially uncontroverted.'" 535 U.S. at 633, 152 L. Ed. 2d at 869 (quoting Johnson, 520 U.S. at 470, 137 L. Ed. 2d at 729). In light of the overwhelming evidence presented at trial, the Court concluded that "[s]urely the grand jury, having found that the conspiracy existed, would have also found that the conspiracy involved at least 50 grams of cocaine base." Id. Admittedly, Cotton applied harmless-error principles to the grand jury's failure to find facts belonging in an indictment. Id. It is not much of a stretch, however, to extend Cotton to the situation where a petit jury has not found facts essential to the punishment. See State v. Sepahi, 206 Ariz. 321, 324 n.3, 78 P.3d 732, 735 n.3 (2003) (relying on Cotton in determining that Apprendi error is subject to harmless-error review). See generally Joshua A.T. Fairfield, To Err is Human: The Judicial Conundrum of Curing Apprendi Error, 55 Baylor L. Rev. 889, 953 (2003) (following a discussion of Cotton, concluding that "in both the harmless error and plain error settings, there is no reason to treat the failure to present an element of a crime to a grand jury any differently than a failure to present an element of a crime to a petit jury").
See, e.g., United States v. Higgs, 353 F.3d 281, 304-06 (4th Cir. 2003), cert. denied, ___ U.S. ___, 160 L. Ed. 2d 456 (2004); United States v. Perez-Ruiz, 353 F.3d 1, 17 (1st Cir. 2003), cert. denied, 541 U.S. 1005, 158 L. Ed. 2d 522 (2004); United States v. Lafayette, 337 F.3d 1043, 1052 (D.C. Cir. 2003); United States v. Zidell, 323 F.3d 412, 433-34 (6th Cir.), cert. denied, 540 U.S. 824, 157 L. Ed. 2d 46 (2003); United States v. Matthews, 312 F.3d 652, 665 (5th Cir. 2002), cert. denied, 538 U.S. 938, 155 L. Ed. 2d 341 (2003); United States v. Stewart, 306 F.3d 295, 322-23 (6th Cir. 2002); United States v. Friedman, 300 F.3d 111, 127-28 (2d Cir. 2002), cert. denied, 538 U.S. 981, 155 L. Ed. 2d 672 (2003); United States v. Samuel, 296 F.3d 1169, 1171-72 (D.C. Cir.), cert. denied, 537 U.S. 1078, 154 L. Ed. 2d 578 (2002); United States v. Sanchez-Cervantes, 282 F.3d 664, 670 (9th Cir.), cert. denied, 537 U.S. 939, 154 L. Ed. 2d 243 (2002); United States v. Henry, 282 F.3d 242, 251-52 (3d Cir. 2002); United States v. Wheat, 278 F.3d 722, 739-42 (8th Cir. 2001) (applying harmless-error principles in the context of plain-error review and concluding that "any Apprendi error is harmless"),cert. denied, 537 U.S. 850, 154 L. Ed. 2d 81 (2002); United States v. Prentiss, 273 F.3d 1277, 1278-79 (10th Cir. 2001); United States v. Vazquez, 271 F.3d 93, 103 (3d Cir. 2001), cert. denied, 536 U.S. 963, 153 L. Ed. 2d 845 (2002); United States v. Bailey, 270 F.3d 83, 88-90 (1st Cir. 2001); United States v. Candelario, 240 F.3d 1300, 1307 (11th Cir.), cert. denied, 533 U.S. 922, 150 L. Ed. 2d 705 (2001), overruled in part on other grounds by United States v. Sanchez, 269 F.3d 1250, 1277-80 (11th Cir. 2001), cert. denied, 535 U.S. 942, 152 L. Ed. 2d 234 (2002); United States v. Anderson, 236 F.3d 427, 429 (8th Cir.), cert. denied, 534 U.S. 956, 151 L. Ed. 2d 270 (2001); United States v. Nance, 236 F.3d 820, 825 (7th Cir. 2000), cert. denied, 534 U.S. 832, 151 L. Ed. 2d 43 (2001); United States v. Garcia-Guizar, 234 F.3d 483, 488-89 (9th Cir. 2000), cert. denied, 532 U.S. 984, 149 L. Ed. 2d 490 (2001); United States v. Nealy, 232 F.3d 825, 829-30 (11th Cir. 2000), cert. denied, 534 U.S. 1023, 151 L. Ed. 2d 428 (2001); State v. Garcia, 200 Ariz. 471, 475, 28 P.3d 327, 331 (Ct. App. 2001); People v. Sengpadychith, 26 Cal. 4th 316, 327, 27 P.3d 739, 746 (2001); State v. Davis, 255 Conn. 782, 796 & n.14, 772 A.2d 559, 568 & n.14 (2001); State v. Price, 61 Conn. App. 417, 423-25, 767 A.2d 107, 112-13, appeal denied, 255 Conn. 947, 769 A.2d 64 (2001); People v. Thurow, 203 Ill. 2d 352, 368, 786 N.E.2d 1019, 1028 (2003); State v. Burdick, 2001 ME 143, ..22-34, 782 A.2d 319, 326-29 (2001), cert. denied, 534 U.S. 1145, 151 L. Ed. 2d 998 (2002).
Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556 (2002), a precursor to Blakely that applied the Apprendi rule in the context of capital sentencing, lends further support to this position. In a footnote in Ring, the United States Supreme Court declined to reach "the [s]tate's assertion that any error was harmless" because "this Court ordinarily leaves it to lower courts to pass on the harmlessness of error in the first instance." Id. at 609 n.7, 153 L. Ed. 2d at 577 n.7. If the Court did not agree that Ring (or Apprendi) errors were generally subject to harmless-error review, it would not have directed the lower federal courts to pass on such matters "in the first instance." In addition, the Arizona Supreme Court held on remand in Ring III that the failure to submit aggravating factors to the jury in capital cases was subject to harmless-error review. State v. Ring, 204 Ariz. 534, 65 P.3d 915, 933 (2003).
Defendant did, however, accept responsibility for the accidental burning, acknowledging that if he had been more vigilant in watching the child, the injury would not have occurred.