Harper v. Com., Record No. 2441-07-2.

• Decision Date: 28 April 2009
• Docket Number: Record No. 2441-07-2.
• Citation: 54 Va. App. 21,675 S.E.2d 841
• Court: Virginia Court of Appeals
• Parties: Latroy A. HARPER v. COMMONWEALTH of Virginia.

675 S.E.2d 841

54 Va. App. 21

Latroy A. HARPER v. COMMONWEALTH of Virginia.

Record No. 2441-07-2.

Court of Appeals of Virginia, Richmond.

April 28, 2009.

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.

Present: KELSEY and HALEY, JJ., and BUMGARDNER, S.J JAMES W. HALEY, JR., Judge.

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, 124 S.Ct. 1354, 158 L.Ed.2d 177 (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, 86 S.Ct. 1602, 16 L.Ed.2d 694 (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.

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." Pennsylvania v. Ritchie, 480 U.S. 39, 52, 107 S.Ct. 989, 999, 94 L.Ed.2d 40 (1987) (citing California v. Green, 399 U.S. 149, 157, 90 S.Ct. 1930, 1934-35, 26 L.Ed.2d 489 (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 Maryland v. Craig, 497 U.S. 836, 849, 110 S.Ct. 3157, 3165-66, 111 L.Ed.2d 666 (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, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (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, 124 S.Ct. at 1370-72. In Crawford, the defendant stabbed a man and was tried for assault and attempted murder. Id. at 38, 124 S.Ct. at 1356-57. 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, 124 S.Ct. at 1374.

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, 124 S.Ct. at 1356-59. 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, 124 S.Ct. at 1359. 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, 124 S.Ct. at 1359-1363.

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, 124 S.Ct. at 1364. 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, 124 S.Ct. at 1365-66. 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, 124 S.Ct. at 1367.

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, 124 S.Ct. at 1369. 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, 124 S.Ct. at 1370....