Rules of Evidence Apply to Blakely Bench Trials

State v. Sanchez-Sanchez, Minn.S.Ct., 5/18/2016.  Despite the title of this post this appeal is really about "plain error".   Mr. Sanchez-Sanchez pled guilty to some drug conspiracy charge and then agreed to let the trial judge hear and decide the aggravating factors question.  The state put on an FBI agent who was permitted without objection to testify to multiple layers of hearsay evidence.  Justice Hudson, writing for three other Justices, Justice Chutich not having been yet on the court, says that the rules of evidence apply in a Blakely court trial.  So it was error to let in all that hearsay testimony.  But under "plain error" this error was not "plain," and so there is no relief to Mr. Sanchez-Sanchez.  

It's not "plain" apparently because of Justice Stras' - oops, Justice Hudson's - originalist interpretation of Rule of Evidence 1101.  This rules begins by saying that the rules of evidence apply "to all actions and proceedings in the courts of this state."  It then says that the rule doesn't apply in certain "situations" one of which is "sentencing." This rule was last revised back in 1977, a long time ago in a galaxy far, far away.  Shortly after Blakely the question arose whether the "sentencing" exception in Rule 1101 meant that the rules didn't operate in a Blakely jury trial. Justice Hudson acknowledges that back in 2008 Justice G. Barry Anderson wrote State.v. Rodriguez, Jr.,, 754 N.W.2d 672 (Minn. 2008), in which the court said that the rules of evidence do apply in a Blakely jury trial.  Since there was no mention of Blakely court trials - why would there be - Justice Hudson insisted that whether the rules of evidence apply in bench trials remained open.  She also said that lower courts had been applying Rodriguez only to jury trials.  

That the rules of evidence also applied in a Blakely court trial seemed plain enough to Justices G. Barry Anderson and Dietzen, an odd couple for sure.  The dissenters thought that the analysis in Rodriquez left no doubt that the rules of evidence would apply in any Blakely trial, jury or bench. The dissenters pointed out that part of the Rodriquez rationale was that the criminal rules require that before a defendant can waive his right to a jury or judge trial on the existence of an aggravating factor that defendant must waive the right of confrontation before the court can accept an admission of facts in support of an aggravated factor. The Rodriquez court could also harken back some twenty-eight years before that in State v. Adams, 295 N.W.2d 527 (Minn. 1980). There, the state had sought career offender status for Mr. Adams and put on an evidentiary hearing before the trial judge at which hearsay evidence was admitted.  The appellate court said that a defendant was entitled to notice, opportunity to be heard and opportunity to cross examine the state's witnesses in such a hearing.  But since Mr. Adams had all that, the court declined to reverse his conviction. 

The court's originalist reliance on a rule, the text of which was written at a time when Blakley not only didn't exist but wasn't even contemplated, also ignores that Criminal Procedure Rule 27.03, Subd. 1(B) specifically authorizes receipt of testimony at a sentencing hearing.