Appeal from the District Court of the Seventh Judicial District, State of Idaho, Bonneville County. Hon. Jon J. Shindurling, District Judge.
The opinion of the court was delivered by: Schwartzman, Judge Pro Tem
Judgment of conviction and sentence for robbery, affirmed; order denying Idaho Criminal Rule 35 motion, affirmed.
Sasha Dee Martinez appeals from her judgment of conviction for robbery and the district court's order denying her Idaho Criminal Rule 35 motion. Specifically, she challenges the court's refusal to allow testimonial evidence at her sentencing and Rule 35 hearings. She further contends that her rights to confrontation and due process were violated when a co-defendant's written statement to police was read and used as argument by the prosecutor at sentencing. For the reasons set forth below, we affirm.
Martinez, her boyfriend Enrique Espinoza, and at least one other woman participated in the armed robbery of a convenience store in Idaho Falls. Martinez was charged with one count of robbery. Although it was disputed whether Martinez was one of the armed women who entered the store with Espinoza, it was undisputed that she entered the store to disable the security device in anticipation of the robbery. Martinez pled guilty as charged. At sentencing, Martinez was asked and initially declined to call any witnesses.*fn1 She requested that she be placed on probation, because, among other factors, she had been minimally culpable in the robbery and her participation was compelled by her fear of Espinoza. The State rebutted this assertion by reading a statement, over Martinez's objection, from the presentence investigation report (PSI report) wherein Espinoza indicated to police that Martinez was a willing and integral participant in the scheme from the outset. The district court thereafter denied Martinez's request to present the testimony of Yvon Lopez, one of the co-perpetrators of the robbery, who Martinez indicated would "clarify" the circumstances surrounding the crime. The court sentenced Martinez to a unified term of fifteen years, with three years determinate, and retained jurisdiction for 365 days. Less than four months later, the court relinquished jurisdiction upon the recommendation of the Department of Correction. Martinez moved for reconsideration of the relinquishment, which was treated as a motion under Idaho Criminal Rule 35 for reduction of sentence. At a hearing on the motion, Martinez attempted to present testimony from her mother, which the district court disallowed, indicating it would not be accepting additional evidence. The motion was denied. Martinez now appeals.
Martinez contends the district court made several errors in regard to the prosecutor's reading of Espinoza's statement at sentencing. First, she argues that allowing consideration of the statement without giving her the opportunity to confront Espinoza violated her constitutional right to confrontation pursuant to the Confrontation Clause and Due Process Clause. She also contends the district court erred by not allowing her to present Lopez's testimony in response to the State's use of Espinoza's statement during its argument and recommendation of sentence.
Martinez contends Espinoza's statement contained in her PSI report should not have been read by the prosecution at sentencing without giving her an opportunity for confrontation, based on both the Confrontation Clause of the United States Constitution and the due process protections afforded by the Idaho and federal constitutions.*fn2 We turn first to the applicability of the Confrontation Clause to sentencing proceedings.
The Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. CONST. amend. VI. However, Idaho courts, as well as nearly all other jurisdictions, have consistently held this right to confrontation does not require a criminal defendant be allowed to confront and cross-examine witnesses at sentencing proceedings. The Idaho Supreme Court explained its reasoning in Sivak v. State, 112 Idaho 197, 214-16, 731 P.2d 192, 209-11 (1986), where the defendant contended the trial court violated his Sixth Amendment right to confrontation by considering statements of his co-defendant included in the PSI report.*fn3 The Idaho Supreme Court rejected his claim, stating it would continue to adhere to the holding of the United State Supreme Court in Williams v. New York, 337 U.S. 241 (1949)*fn4 , the only case in which the United States Supreme Court directly addressed a defendant's right to confront witnesses during sentencing.*fn5 In Williams, a death penalty case, the defendant argued the sentencing court's reliance on evidence from witnesses who Williams had not had the opportunity to confront violated his due process right to confrontation. Id. at 245. The United States Supreme Court rejected this contention based, in part, on both the historical roots of allowing a sentencing judge "wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment" and the belief that modern penological policies, which favor sentencing based on the maximum amount of information about the defendant, would be thwarted by restrictive procedural and evidentiary rules. Id. at 246-50. The Court also explained that requiring "open court testimony with cross-examination" would be "totally impractical if not impossible" in the sentencing context. Id. at 250. Accord Williams v. Oklahoma, 358 U.S. 576, 584 (1959) ("[O]nce the guilt of the accused has been properly established, the sentencing judge, in determining the kind and extent of punishment to be imposed, is not restricted to evidence derived from the examination and cross-examination of witnesses in open court . . . .").
The issue appeared largely settled until 2004, when the United States Supreme Court dramatically altered the landscape of Confrontation Clause jurisprudence in Crawford v. Washington, 541 U.S. 36 (2004). In Crawford, the Court abandoned the "indicia of reliability" test espoused in Ohio v. Roberts, 448 U.S. 56, 66 (1980) that had long been applied to the admission of hearsay evidence at trial.*fn6 Crawford, 541 U.S. at 60. The Court held that the mere "indicia of reliability" was insufficient and the Sixth Amendment bars the use of testimonial statements at trial of witnesses who do not appear at trial, unless the witness is unavailable and the defendant was given an opportunity to cross-examine the witness. Id. at 53-54, 68. Thus, the applicability of the Sixth Amendment to admission of testimonial hearsay evidence at trial is now clear, but whether these protections extend to sentencing proceedings remains ...