STATE v. ALLEN
No. 485PA04
IN THE SUPREME COURT OF NORTH CAROLINA
Filed 1 July 2005
359 N.C. 425 (2005)
STATE OF NORTH CAROLINA v. LEVAR JAMEL ALLEN
Appeal and Error— general supervisory authority—review of Court of Appeals’ decision on motion for appropriate relief The Supreme Court exercised its general supervisory authority and accepted the State‘s petition for discretionary review of a Court of Appeals decision resolving a motion for appropriate relief in the Court of Appeals, despite
N.C.G.S. § 15A-1422(f) , because a prompt and definitive resolution of the constitutionality of North Carolina Structured Sentencing Act was necessary to the fair and effective administration of North Carolina‘s criminal courts.- Sentencing— structured—facts increasing punishment—jury finding beyond a reasonable doubt—indictment allegation not required
Applied to North Carolina‘s structured sentencing scheme, the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), is that any fact other than a prior conviction that increases the penalty beyond the presumptive range must be submitted to a jury and proved beyond a reasonable doubt. The language of State v. Lucas, 353 N.C. 568 (2001), which defines “statutory maximum” in a manner inconsistent with this opinion is overruled, along with language requiring sentencing factors which might lead to a sentencing enhancement to be alleged in an indictment.
- Sentencing— aggravating factors—jury finding beyond a reasonable doubt
The Sixth Amendment of the U.S. Constitution is violated by those portions of
N.C.G.S. § 15A-1340.16(a) ,(b) , and(c) which require trial judges to consider evidence of aggravating factors not found by a jury or admitted by the defendant and which permit imposition of an aggravated sentence upon judicial findings of such aggravating factors by a preponderance of the evidence. However, this ruling affects only those portions of the Structured Sentencing Act which require the sentencing judge to consider aggravating factors not admitted by defendant or found by a jury;those portions of N.C.G.S. § 15A-1340.16 which govern a sentencing judge‘s finding of mitigating factors and which permit the judge to balance aggravating factors otherwise found to exist are not implicated and remain unaffected. - Sentencing— Blakely errors—structural—reversible per se
Blakely v. Washington errors arising under North Carolina‘s Structured Sentencing Act are structural and therefore reversible per se. The harmless error rule does not apply because the jury‘s findings have been vitiated in total. This holding applies to cases in which the defendants have not been indicted as of the certification date of this opinion and to cases that are now pending on direct review or are not yet final.
Justice MARTIN concurring in part and dissenting in part.
Chief Justice LAKE and Justice NEWBY join in the concurring and dissenting opinion.
On discretionary review pursuant to
Roy Cooper, Attorney General, by Robert C. Montgomery, Assistant Attorney General, for the State-appellant.
Richard E. Jester for defendant-appellee.
BRADY, Justice.
The primary question presented for review is whether sentencing errors which violate a defendant‘s Sixth Amendment right to jury trial pursuant to the recent United States Supreme Court decision in Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004), may be deemed harmless. We conclude that Blakely errors are structural and modify and affirm the decision of the Court of Appeals remanding defendant‘s case to Gaston County Superior Court for resentencing.
Preliminarily, this Court must also examine the effect of Blakely on criminal sentencing in North Carolina. We conclude that Blakely
These holdings apply to cases “in which the defendants have not been indicted as of the certification date of this opinion and to cases that are now pending on direct review or are not yet final.” State v. Lucas, 353 N.C. 568, 598, 548 S.E.2d 712, 732 (2001). See State v. Hinnant, 351 N.C. 277, 523 S.E.2d 663 (2000); Griffith v. Kentucky, 479 U.S. 314, 93 L. Ed. 2d 649 (1987).
FACTUAL BACKGROUND
On 3 December 2001, defendant Levar Jamel Allen was indicted for child abuse inflicting serious bodily injury, a Class C felony. The indictment alleged that on 7 November 2001, defendant intentionally and severely burned his nine month old son, thereby causing serious injury to the child. Defendant pleaded not guilty to the offense and was tried by jury at the 28 January 2003 term of Gaston County Superior Court before Judge J. Gentry Caudill. On 31 January 2003, the jury unanimously found defendant guilty of felony child abuse inflicting serious bodily injury.
During the sentencing proceeding, Judge Caudill calculated that defendant had a prior record level of II, based upon one previous Class 1 misdemeanor conviction and one previous Class A1 misdemeanor conviction. Judge Caudill made additional findings of aggravating and mitigating factors. In aggravation, Judge Caudill found by a preponderance of the evidence that defendant‘s abuse of his son was especially heinous, atrocious, or cruel. In mitigation, Judge Caudill found three factors by a preponderance of the evidence: (1) “the defendant has been a person of good character or has had a good reputation in the community,” (2) “the defendant has a support system in the community,” and (3) “the defendant was punished emotionally.” Judge Caudill determined that “factors in aggravation outweigh the factors in mitigation and that an aggravated sentence is justified.” Finally, Judge Caudill imposed an aggravated sentence of 115 months minimum to 147 months maximum imprisonment. Defendant‘s maximum aggravated sentence is eighteen months longer than the maximum presumptive sentence permitted by statute for a Class C felony, prior record level II.
Defendant appealed to the North Carolina Court of Appeals, contesting, among other assignments of error, the sufficiency of evi-
PROCEDURAL POSTURE
[1] This matter is before the Court on the State‘s petition for discretionary review, allowed 23 September 2004. Defendant contends that this Court lacks subject matter jurisdiction to review the Court of Appeals’ decision because he raised the question of Blakely error in the Court of Appeals by a motion for appropriate relief. In support of his argument, defendant cites
We agree that
However, collateral review is proper in certain rare circumstances, as when the Court of Appeals applies a new federal constitutional rule of widespread effect on the administration of justice throughout the state. Cf. In re Brownlee, 301 N.C. 532, 548, 272 S.E.2d 861, 870 (1981) (“Under exceptional circumstances this [C]ourt will exercise power under [Article IV, Section 12, Clause 1 of the North Carolina Constitution] in order to consider questions which are not presented according to our rules of procedure; and this [C]ourt will not hesitate to exercise its general supervisory authority when necessary to promote the expeditious administration of justice.“) (citations omitted); State v. Stanley, 288 N.C. 19, 26, 215 S.E.2d 589, 594 (1975) (“This Court will not hesitate to exercise its rarely used general supervisory authority when necessary to promote the expeditious administration of justice. Under unusual and exceptional circumstances [the Court] will exercise this power to consider questions which are not properly presented according to [its] rules.“) (citations omitted). Read broadly, the Court of Appeals’ decision in Allen, applying Blakely, calls into question the constitutionality of North Carolina‘s Structured Sentencing Act and identifies a new type of structural error which is reversible per se. For these reasons Allen and Blakely have the potential to affect a significant number of criminal sentences in North Carolina.
Because a prompt and definitive resolution of this issue is necessary to ensure the continued fair and effective administration of North Carolina‘s criminal courts, we exercise the supervisory authority of this Court, which is embodied in Article IV, Section 12, Clause 1 of the North Carolina Constitution, and review the opinion of the Court of Appeals. In so doing, we note that
For the reasons stated above, we determine that the State‘s petition for discretionary review of the decision of the Court of Appeals resolving defendant‘s motion for appropriate relief is properly before this Court. We now consider the effect of Blakely v.
NORTH CAROLINA STRUCTURED SENTENCING
In 1979 the North Carolina General Assembly enacted presumptive sentencing legislation, commonly known as the “Fair Sentencing Act,” in “response to a perceived need for certainty in sentencing, to a perceived evil of disparate sentencing, and to a perceived problem in affording trial judges and parole authorities unbridled discretion in imposing sentences.” Ahearn, 307 N.C. at 594, 300 S.E.2d at 695; An Act to Establish a Fair Sentencing System in North Carolina Criminal Courts, ch. 760, 1979 N.C. Sess. Laws 850. Before enactment of this legislation, North Carolina, like most other states, utilized “typical indeterminate sentencing law.” Stevens H. Clarke, Law of Sentencing, Probation and Parole in North Carolina 39-40 (Inst. of Gov‘t, Univ. of N.C. at Chapel Hill 1991) (hereinafter, Clarke, Sentencing]. “Ranges of prison terms were wide for broadly defined crimes,” and “[n]o criteria for sentencing were set by statute, court decision, or court rules.” Id. at 40.
North Carolina‘s Fair Sentencing Act was revised several times before it went into effect on 1 July 1981. See
[t]he primary purposes of sentencing a person convicted of a crime are to impose a punishment commensurate with the injury the offense has caused, taking into account factors that may diminish or increase the offender‘s culpability; to protect the public by restraining offenders; to assist the offender toward rehabilitation and restoration to the community as a lawful citizen; and to provide a general deterrent to criminal behavior.
Id.
In 1993 the General Assembly further reformed North Carolina‘s criminal sentencing system, enacting legislation commonly known as the “Structured Sentencing Act” in response to rising prison populations. Clarke, Sentencing 1-4 (Supp. 1994). Structured sentencing, which classifies convicted criminal defendants for sentencing purposes based upon the severity of their crime (offense class) and gravity of their prior criminal record (prior record level), became effective on 1 October 1994 and is still in effect today. An Act To Provide for Structured Sentencing in North Carolina Consistent with the
Pursuant to the Structured Sentencing Act, sentencing judges must impose both a minimum and maximum active, intermediate, or community punishment for felony convictions.
The statutory punishment chart for minimum sentences consists of a grid on which offense classes and prior record levels are the axes. Id.
Before selecting a convicted criminal defendant‘s minimum sentence, the sentencing judge must consider whether aggravating and mitigating factors are present, weigh any existing factors, and decide upon a mitigated, presumptive, or aggravated punishment range. Id.
RIGHT TO JURY TRIAL
The right to jury trial is the only constitutional guarantee preserved both in the body of the Constitution and the Bill of Rights.
In 2000, however, the United States Supreme Court held that the right to jury trial also requires that jurors find sentencing facts which increase the penalty for a crime “beyond the prescribed statutory maximum.” Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455 (2000). Four years later, the Court defined “statutory maximum” as the maximum sentence permitted by the jury‘s verdict or
This Court must now determine whether North Carolina‘s Structured Sentencing Act is Blakely compliant. After thorough review of United States Supreme Court precedent, including Apprendi v. New Jersey and Blakely v. Washington, and this Court‘s intervening opinion in State v. Lucas, we conclude that those portions of
In Apprendi v. New Jersey, the United States Supreme Court granted certiorari to review a New Jersey law which authorized an “extended term” of imprisonment for defendants whose crimes were classified as “hate crimes.” 530 U.S. at 468-69, 147 L. Ed. 2d at 442. This “hate crime” enhancement, which did not criminalize conduct in and of itself, was designed to augment the maximum sentence imposed for any separate complete offense. Id. Under the New Jersey statute, a trial judge was permitted to impose a longer sentence than the sentence set forth in the provision defining an underlying offense if the judge found by a preponderance of the evidence that “[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.” Id.
The defendant in Apprendi pleaded guilty to second-degree possession of a firearm for an “unlawful purpose,” an offense punishable in New Jersey by five to ten years imprisonment. Id. at 469-70, 147 L. Ed. 2d at 442-43. During sentencing, the State requested, and the trial judge conducted, an evidentiary hearing on the defendant‘s “purpose” for unlawful possession. Id. at 470, 147 L. Ed. 2d at 443. Following the hearing, the judge found by a preponderance of the evidence that the defendant‘s actions were ” ‘motivated by racial bias’ ” and committed ” ‘with a purpose to intimidate.’ ” Id. at 471, 147 L. Ed. 2d at 443. Thereafter, the judge sentenced the defendant to a twelve-year “extended term” of imprisonment. Id.
On appeal, the defendant argued that the Due Process Clause of the United States Constitution requires that findings of “bias” and “purpose to intimidate“—the two factors upon which his “extended term” was based—must be proved to a jury beyond a reasonable
The following year, in State v. Lucas, this Court applied Apprendi to the sentencing of a defendant whose first-degree burglary and second-degree kidnapping sentences were enhanced pursuant to
In Lucas, a jury convicted the defendant of first-degree burglary, a Class D felony, and second-degree kidnapping, a Class E felony. Id. at 593, 548 S.E.2d at 729. During sentencing, the trial court determined that the defendant had a prior record level of I. Id. Referring to the appropriate statutory punishment chart, the sentencing judge selected minimum sentences at the high end of the presumptive range: sixty-four months minimum imprisonment for first-degree burglary and twenty-five months minimum imprisonment for second-degree kidnapping. Id. Thereafter, the judge added sixty months to each minimum sentence in accordance with section 15A-1340.16A, before determining the corresponding maximum sentences. Id.
Reviewing the defendant‘s motion for appropriate relief, this Court considered the meaning of “statutory maximum” as employed by Apprendi. Id. at 596, 548 S.E.2d at 730-31. The Court defined “statutory maximum” for Apprendi purposes as the maximum sentence that a trial judge could properly impose by reference to the statutory punishment charts, including an aggravated sentence. Id. at 596, 548 S.E.2d at 731. The Court explained that the maximum
(1) findings that the defendant falls into the highest criminal history category for the applicable class offense and that the offense was aggravated, followed by (2) a decision by the sentencing court to impose the highest possible corresponding minimum sentence from the ranges presented in the chart found in
N.C.G.S. § 15A-1340.17(c) .
Id. (emphasis added).
This holding appeared consistent with Apprendi, in which, following a historical discussion of common law sentencing jurisprudence, the United States Supreme Court cautioned:
We should be clear that nothing in this history suggests that it is impermissible for judges to exercise discretion—taking into consideration various factors relating both to offense and offender—in imposing a judgment within the range prescribed by statute. We have often noted that judges in this country have long exercised discretion of this nature in imposing sentence[s] within statutory limits in the individual case.
530 U.S. at 481, 147 L. Ed. 2d at 449.
Under the straightforward approach developed by Lucas, most criminal sentences in North Carolina were considered Apprendi compliant. In a small number of cases, as in Lucas, separate statutory enhancement provisions had the potential to increase a defendant‘s actual sentence beyond the statutory maximum.
As calculated in Lucas, the maximum enhanced sentence for a Class D felony pursuant to
In Blakely v. Washington, the United States Supreme Court addressed the meaning of “statutory maximum” with respect to an “exceptional” sentence imposed on a criminal defendant pursuant to Washington State‘s Sentencing Reform Act. 542 U.S. at —, —, 159 L. Ed. 2d at 410, 413. The defendant pleaded guilty to second-degree kidnapping involving domestic violence and use of a firearm, an offense punishable by imprisonment within a “standard range” of forty-nine to fifty-three months under Washington state law. Id. at —, 159 L. Ed. 2d at 410-11. Washington statutes provided, however, that a judge may impose a sentence above the “standard range” upon finding “substantial and compelling reasons justifying an exceptional sentence.” Id. at —, 159 L. Ed. 2d at 411. “Substantial and compelling reasons” deemed to support an exceptional sentence were listed in Washington‘s Sentencing Reform Act. Id. at —, 159 L. Ed. 2d at 411. The trial judge found as an aggravating factor that defendant had acted with “deliberate cruelty” in kidnapping his wife. Id. at —, 159 L. Ed. 2d at 411. The judge then sentenced the defendant to an exceptional sentence of ninety months—thirty-seven months longer than the maximum sentence recommended by prosecutors and authorized by Washington‘s kidnapping statute. Id. at —, 159 L. Ed. 2d at 411.
On appeal, the defendant argued that Washington‘s Sentencing Reform Act, which permits judges to impose “exceptional sentences” based upon judicial findings of aggravating sentencing factors, “deprived him of his federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence.” Id. at —, 159 L. Ed. 2d at 412. The United States Supreme Court agreed, reaffirming the Apprendi rule. Id. at —, 159 L. Ed. 2d
Applying this definition to the defendant, the United States Supreme Court concluded that the ninety month “exceptional sentence” imposed under Washington‘s Sentencing Reform Act exceeded the “statutory maximum” by more than three years. Id. at —, 159 L. Ed. 2d at 413-14, 420. Accordingly, the Court held that the Sixth Amendment required the facts supporting the defendant‘s “exceptional sentence,” specifically that the defendant acted with “deliberate cruelty,” to be proved to a jury beyond a reasonable doubt. Id. at —, 159 L. Ed. 2d at 420. Granting the defendant relief, the United States Supreme Court reversed the judgment of the Washington Court of Appeals and remanded his case for further proceedings not inconsistent with its opinion. Id.
[2] The United States Supreme Court decision in Blakely and the North Carolina Court of Appeals decision in Allen prompt this Court to revisit its prior holding in Lucas defining “statutory maximum.” After Blakely, it is clear that the “statutory maximum” to which Apprendi applies is not the maximum sentence authorized by statute; rather, for Apprendi purposes, “statutory maximum” means the maximum sentence authorized by the jury verdict or the defendant‘s admissions. Applied to North Carolina‘s structured sentencing scheme, the rule of Apprendi and Blakely is: Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed presumptive range must be submitted to a jury and proved beyond a reasonable doubt. See Blakely, U.S. at —, 159 L. Ed. 2d at 413-14; Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455;
On 8 February 2005, defendant filed a motion for appropriate relief in this Court, arguing that ”Blakely and the surviving portion of Lucas” require “aggravating factors that are used to increase a sentence beyond the top of the presumptive range... be alleged in an indictment.” As indicated in Lucas, 353 N.C. at 597-98, 548 S.E.2d at 731, a requirement that the State “allege the statutory factors sup-
‘under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.’ The Fourteenth Amendment commands the same answer in this case involving a state statute.
530 U.S. at 476, 147 L. Ed. 2d at 446 (quoting Jones v. United States, 526 U.S. 227, 243 n.6, 143 L. Ed. 2d 311, 326 n.6 (1999)).
However, in footnote three of the Apprendi opinion, the Court clarified that “[the defendant] has not here asserted a constitutional claim based on the omission of any reference to sentence enhancement or racial bias in the indictment.... We thus do not address the indictment question separately today.” Subsequent United States Supreme Court decisions in Ring v. Arizona and Blakely, which applied Apprendi to aggravating factors supporting capital and noncapital sentences respectively, were based solely on the Sixth Amendment right to jury trial, without reference to the Fifth Amendment‘s indictment guarantee. Ring v. Arizona, 536 U.S. 584, 597, 609, 153 L. Ed. 2d 556, 569, 576-77 (2002); Blakely, 542 U.S. at —, 159 L. Ed. 2d at 415-16. Although “[d]ue process and notice requirements under the Sixth Amendment inure[] to state prosecutions,” this Court recently recognized “to this date, the United States Supreme Court has not applied the Fifth Amendment indictment requirements to the states.” State v. Hunt, 357 N.C. 257, 272-73, 582 S.E.2d 593, 603-04 (2003). Indeed, in Hunt this Court concluded that “the Fifth Amendment would not require aggravators, even if they were fundamental equivalents of elements of an offense, to be pled in a state-court indictment.” Id. at 272, 582 S.E.2d at 603. Accordingly, we also overrule that language of Lucas, requiring sentencing factors which might lead to a sentencing enhancement to be alleged in an indictment.
[3] For the reasons stated above, we determine that those portions of
We emphasize that Blakely, which is grounded in the Sixth Amendment right to jury trial, affects only those portions of the Structured Sentencing Act which require the sentencing judge to consider the existence of aggravating factors not admitted to by a defendant or found by a jury and which permit the judge to impose an aggravated sentence after finding such aggravating factors by a preponderance of the evidence. Those portions of
COURT OF APPEALS OPINION BELOW
Having identified error in defendant‘s sentence, this Court must now determine whether that error is subject to harmless error review, and if so, whether harmless error exists in this case. The Court of Appeals concluded that the harmless-error rule does not apply, citing State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689, which held that a defendant‘s case must be remanded for resentencing whenever the trial judge has imposed an aggravated sentence based upon a sentencing factor which is not supported by the evidence. Allen, 166 N.C. App. at 149-50, 601 S.E.2d at 306. The State argues, and we agree, that Ahearn is not controlling.
In State v. Ahearn, this Court considered the effect of one aggravating factor, which was later determined to be unsupported by the evidence, on a sentencing judge‘s balancing of all sentencing factors present in the case. 307 N.C. at 599-602, 300 S.E.2d at 698-701. The
This Court‘s holding in Ahearn rested on the inability of an appellate court to determine how removing one aggravating factor would affect the sentencing judge‘s balancing of the remaining aggravating and mitigating factors present in the defendant‘s case. Id. at 602, 300 S.E.2d at 700-01. Ahearn did not address whether the finding of an aggravating factor by the wrong entity is subject to harmless error review. Because Blakely does not concern the actual combination of aggravating and mitigating factors found by a jury, but instead safeguards the participation of jurors in sentencing, Ahearn does not control the case sub judice. Our analysis of this separate question is guided by the reasoning of Blakely v. Washington, the evolution of harmless error review, and United States Supreme Court case law defining structural error.
STRUCTURAL ERROR
The State argues that for purposes of Apprendi and Blakely, sentencing factors are functionally equivalent to the elements of a criminal offense. Citing Neder v. United States, 527 U.S. 1, 144 L. Ed. 2d 35 (1999), the State reasons that failure to submit sentencing factors to a jury should receive the same degree of scrutiny as failure to submit an element of a criminal offense to the jury—harmless error review. We disagree, concluding instead that complete removal of aggravating factors from jury consideration during sentencing is structural error similar to the structural error identified by the United
Structural error is a rare form of constitutional error resulting from a “defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Arizona v. Fulminante, 499 U.S. 279, 310, 113 L. Ed. 2d 302, 337 (1991). Such errors “deprive defendants of ‘basic protections,’ without which... ‘no criminal punishment may be regarded as fundamentally fair.’ ” Neder, 527 U.S. at 8-9, 144 L. Ed. 2d at 46-47 (quoting Rose v. Clark, 478 U.S. 570, 577-78, 92 L. Ed. 2d 460, 470 (1986)). The United States Supreme Court first defined structural error in 1991 and has identified six instances of structural error to date: (1) complete deprivation of right to counsel, Johnson v. United States, 520 U.S. 461, 468, 137 L. Ed. 2d 718, 728 (1997) (citing Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799 (1963)); (2) a biased trial judge, Tumey v. Ohio, 273 U.S. 510, 71 L. Ed. 749 (1927); (3) the unlawful exclusion of grand jurors of the defendant‘s race, Vasquez v. Hillery, 474 U.S. 254, 88 L. Ed. 2d 598 (1986); (4) denial of the right to self-representation, McKaskle v. Wiggins, 465 U.S. 168, 79 L. Ed. 2d 122 (1984); (5) denial of the right to a public trial, Waller v. Georgia, 467 U.S. 39, 81 L. Ed. 2d 31 (1984); and (6) constitutionally deficient jury instructions on reasonable doubt, Sullivan, 508 U.S. 275, 124 L. Ed. 2d 182. See Johnson, 520 U.S. at 468-69, 137 L. Ed. 2d at 728 (identifying the six cases in which the United States Supreme Court has found structural error).
Structural errors are said to “defy” harmless error review because they are “so intrinsically harmful as to require automatic reversal (i.e., ‘affect substantial rights‘) without regard to their effect on the outcome.” Neder, 527 U.S. at 7, 144 L. Ed. 2d at 46. For this reason, a defendant‘s remedy for structural error is not dependant upon harmless error analysis; rather, structural errors are reversible per se. Id.
Most constitutional errors are not structural. Rose, 478 U.S. at 578, 92 L. Ed. 2d at 471. On appeal, a reviewing court applies the harmless-error rule to determine whether these nonstructural errors were prejudicial to the defendant or harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 710-11 (1967). Errors that have prejudiced a defendant will be remedied by the appellate court, id. at 24, 26, 17 L. Ed. 2d at 710-11;
Since the United States Supreme Court first introduced harmless error review in 1946, that Court has employed one of two tests to determine whether an error “contribute[d] to the verdict obtained.” Id. First, the Court has considered the “impact of the thing done wrong on the minds of [the jury].” Kotteakos v. United States, 328 U.S. 750, 764, 90 L. Ed. 1557, 1566 (1946). The Court applied this test, which evaluates the “effect [the error] had upon the guilty verdict in the case at hand,” in Sullivan v. Louisiana, 508 U.S. at 279, 280-82, 124 L. Ed. 2d at 189, 190-91. Second, the United States Supreme Court has applied harmless error review after determining that evidence of the defendant‘s guilt presented at trial was “overwhelming.” Harrington v. California, 395 U.S. 250, 254, 23 L. Ed. 2d 284, 287-88 (1969). The Court applied the “overwhelming” evidence standard in Neder v. United States, 527 U.S. at 16-17, 144 L. Ed. 2d at 51-52.
Sullivan, in which the United States Supreme Court found structural error, and Neder, in which the Court found error to be harmless beyond a reasonable doubt, guide this Court‘s decision in the case sub judice. Both Sullivan and Neder address the proper appellate court response to constitutional errors made during the guilt-innocence portion of a trial. The United States Supreme Court has not defined which standard, harmless or structural error, should be applied to state sentencing errors pursuant to Blakely; however, the imposition of a constitutional punishment is just as important to a criminal defendant and to society as is a constitutional determination of the defendant‘s guilt or innocence.
In Sullivan v. Louisiana, the United States Supreme Court considered whether harmless error review applied to constitutionally deficient jury instructions on reasonable doubt, which were submitted to the jury in a defendant‘s first-degree murder trial. 508 U.S. at 276-77, 124 L. Ed. 2d at 187. Except for the testimony of one eyewitness (who identified the defendant on direct examination, but was unable to identify either the defendant or his accomplice during a physical lineup), the State‘s evidence at trial was circumstantial. Id. at 276, 124 L. Ed. 2d at 187. Although defense counsel contended during closing argument that reasonable doubt existed as to whether the defendant was the shooter, the defendant was convicted of first-degree murder. Id. at 276-77, 124 L. Ed. 2d at 187. On appeal, the State
Applying the “effect on the jury” standard, the United States Supreme Court considered ” ‘the basis on which ‘the jury actually rested its verdict.’ ” Id. at 279-80, 124 L. Ed. 2d at 189-90. Because the jury had not returned a “verdict of guilty-beyond-a-reasonable-doubt,” the Court reasoned that the harmless-error inquiry “whether the same verdict of guilty-beyond-a-reasonable-doubt would have been rendered absent the constitutional error is utterly meaningless.” Id. at 280, 124 L. Ed. 2d at 189-90. The Court explained that there was “no object, so to speak, upon which harmless-error scrutiny can operate.” Id. at 280, 124 L. Ed. 2d at 190. Stating that consequences of the defective verdict were “necessarily unquantifiable and indeterminate,” the Court declared the error to be “structural” and remanded the defendant‘s case for further proceedings not inconsistent with its opinion. Id. at 281-82, 124 L. Ed. 2d at 191.
Six years later in Neder v. United States, the United States Supreme Court affirmed the conviction of a defendant who filed a false tax return even though the trial court erred in refusing to submit to the jury the question of whether defendant‘s false statements were material. 527 U.S. at 6, 25, 144 L. Ed. 2d at 45, 57. The Court found that harmless error is the proper standard of review when a single element of a criminal offense is omitted from the jury instructions. Id. at 15, 144 L. Ed. 2d at 51.
In Neder, the United States Supreme Court noted that evidence of the materiality of the defendant‘s false statements was “overwhelming.” Id. at 16-17, 144 L. Ed. 2d at 52. In fact, the defendant did not even argue at trial that his false statements could be found immaterial. Id. at 16, 144 L. Ed. 2d at 51-52. Because the question of materiality was not in dispute at trial, the jury considered “all of the evidence and argument in respect to [the defendant‘s] defense against the tax charges,” notwithstanding the trial judge‘s failure to instruct on that element of the offense. Id. at 9, 144 L. Ed. 2d at 47. Moreover, the defendant‘s guilt or innocence was “tried before an impartial judge, under the correct standard of proof and with the assistance of counsel.” Id. On these facts, the United States Supreme Court reasoned that “an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” Id. Distinguishing Sullivan, the United States Supreme Court empha-
[4] The United States Supreme Court has made clear that the Sixth Amendment requires aggravating sentencing factors, like elements, to be found by a jury beyond a reasonable doubt. Blakely, — U.S. at —, —, 159 L. Ed. 2d at 413-14, 420.5 However, under North Carolina‘s current structured sentencing scheme, aggravating factors are completely withheld from jury review and are determined by a judge by a preponderance of the evidence.
This conclusion is supported by the strong language of Blakely itself. Writing for the majority, Justice Scalia explained that Blakely “reflects... the need to give intelligible content to the right of jury trial.” 542 U.S. at —, 159 L. Ed. 2d at 415. Justice Scalia emphasized that the Sixth Amendment right to jury trial is
no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people‘s ultimate control in the legislative and exec-
utive branches, jury trial is meant to ensure their control in the judiciary.
Id. at —, 159 L. Ed. 2d at 415 (emphasis added).6
Moreover, the
Through Apprendi and Blakely, the United States Supreme Court has extended the
In United States v. Booker, the United States Supreme Court considered the constitutionality of the Federal Sentencing Guidelines with respect to Apprendi and Blakely. — U.S. —, 160 L. Ed. 2d 621 (2005). The Court determined that “the
Ours, of course, is not the last word: The ball now lies in Congress’ court. The National Legislature is equipped to devise and install, long-term, the sentencing system, compatible with the Constitution, that Congress judges best for the federal system of justice.
Id. at —, 160 L. Ed. 2d at 663.
We recognize that dicta in Justice Breyer‘s “remedial” opinion in Booker suggests that lower federal courts may “apply ordinary prudential doctrines,” such as plain and harmless error, when a defendant challenges on direct review a sentence imposed under the Federal Sentencing Guidelines, id. at —, 160 L. Ed. 2d at 665; however, we conclude from context that Justice Breyer‘s comment refers to appellate review of statutory error, which results when a sentencing judge applies the Federal Sentencing Guidelines as mandatory, rather than advisory as required by the Court‘s severability holding.
Our interpretation is supported by the parallel structure of Booker itself, through which constitutional error and statutory error are identified in two separate majority opinions. Justice Stevens’ majority opinion identifies constitutional error, concluding that “the
This Court is not the first state supreme court to order resentencing in response to Blakely error.7 Most recently, in State v.
Hughes, the Supreme Court of Washington held that Blakely sentencing errors are structural errors. State v. Hughes, 154 Wash. 2d 118, 110 P.3d 192 (2005). That court based its holding on an exhaustive review of the harmless error doctrine, noting that many harmless error proponents misconstrue United States v. Cotton, 535 U.S. 625, 152 L. Ed. 2d 860 (2002), which applied plain, not harmless, error to Apprendi violations. Id. at 145, 110 P.3d at 206 *5. The Washington Supreme Court further observed that, at present, the federal circuits “appear inconsistent in whether they will apply harmless error analysis to Apprendi/Blakely violations.” Id. at *9 147, 110 P.3d at 207.
Distinguishing Neder, the court stated,
Although Neder involved the situation where a jury did not find facts supporting every element of the crime, it still returned a guilty verdict. Like traditional harmless error analysis cases, the reviewing court could ask whether but for the omission in the jury instruction, the jury would have returned the same verdict. Where Blakely violations are at issue, however, the jury necessarily did not return a special verdict or explicit findings on the aggravating factors supporting the exceptional sentence. The reviewing court asks whether but for the error, the jury would have made different or new findings. This situation is analogous to Sullivan—there is no basis upon which to conduct a harmless error analysis.
Id. at *1 148, 110 P.3d at 207-08. Because “speculat[ion] on what juries would have done if they had been asked to find different facts” is impermissible, the Washington Supreme Court concluded, as do we, that “[h]armless error analysis cannot be conducted on Blakely Sixth Amendment violations.” Id.
CONCLUSION
Although this Court might envision several measures which would cure the constitutional defect present in
Having identified the source and nature of the constitutional defect present in
For the reasons stated above, we deny defendant‘s motion for appropriate relief filed in this Court 8 February 2005. We affirm the decision of the Court of Appeals remanding defendant‘s case for resentencing and hold that, to the extent
MODIFIED AND AFFIRMED.
Figure 1
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.
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.
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.
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 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
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 constitu-
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 overbroad 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 theSixth 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 theFifth 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 theDue Process Clause ; failure to instruct the jury on the presumption of innocence; admission of identification evidence in violation of theSixth Amendment Confrontation Clause ; admission of the out-of-court statement of a nontestifying codefendant in violation of theSixth Amendment Confrontation Clause ; confession obtained in violation of Massiah v. United States; admission of evidence obtained in violation of theFourth Amendment ; [and] denial of counsel at a preliminary hearing in violation of theSixth Amendment Counsel Clause .
Id. at 306-07, 113 L. Ed. 2d at 329-30 (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)).
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” into 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
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 factfinding role” in violation of the
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
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
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
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
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 decisionmaking 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 overwhelmingly 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
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
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-
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
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
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
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.
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.
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, on 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
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 over substance, 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.