741 S.E.2d 56
Va. Ct. App.2013Background
- Appellant Blunt pled guilty to possessing cocaine and to driving after being adjudicated a habitual offender.
- Sentencing occurred after a continuance; the Commonwealth sought to introduce uncharged drug-sale evidence at sentencing.
- Officer Custer testified about a buy-walk operation involving a confidential informant at 24th and O Street.
- Defense objected on foundation and hearsay grounds; objections were overruled.
- The trial court admitted the informant’s statements as evidence of unadjudicated criminal activity, relying on Moses-based rules for sentencing evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Confrontation rights at sentencing apply to unadjudicated acts? | Blunt relies on Henderson to require a heightened test. | Blunt argues a broader, Moses-based reliability test suffices. | No, Moses standard governs sentencing; no violation. |
| Whether the informant’s statements at sentencing meet reliability for admission? | Reliability insufficient under Moses and Henderson. | Information bears indicia of reliability and corroboration. | Informant evidence met the Moses reliability standard. |
| Does Officer Custer’s testimony triggering cross-examination affect admissibility? | Custer’s testimony should be excluded for confrontation concerns. | Custer testified live and subject to cross-examination; admissible. | Admissible; reliance on Custer’s testimony did not violate due process. |
Key Cases Cited
- Moses v. Commonwealth, 27 Va. App. 293 (Va. App. 1998) (confrontation and reliability rules for sentencing evidence; broad inclusivity with reliability)
- Henderson v. Commonwealth, 59 Va. App. 641 (Va. App. 2012) (probation revocation framework; not controlling for sentencing)
- Wolfe v. Commonwealth, 37 Va. App. 136 (Va. App. 2001) (reliability for sentencing corroboration by corroborating sources)
- Morrissey v. Brewer, 408 U.S. 471 (U.S. 1972) (due process in parole revocation; limited confrontation rights)
- Gagnon v. Scarpelli, 411 U.S. 778 (U.S. 1973) (due process in probation revocation; broadened confrontation considerations)
- Williams v. New York, 337 U.S. 241 (U.S. 1949) (informational use of presentence reports in sentencing)
- Thomas v. Commonwealth, 18 Va. App. 656 (Va. App. 1994) (discusses information permissible in presentence reports)