On September 23, 2013, the Eleventh Circuit (Pryor, with Marcus; Wilson concurring in part, dissenting in part) reversed the district court’s grant of relief to Askari Abdullah Muhammad (fka Thomas Knight) on his claim that the Confrontation Clause was violated by the admission of hearing evidence at Muhammad’s resentencing proceeding. Muhammad v. Secretary, Florida Dept. of Corrections, ___ F.3d ___, 2013 WL 5305326 (11th Cir. Sept. 23, 2013). The panel majority concluded that hearsay evidence is not barred in sentencing proceedings so long as the defendant is allowed to rebut the evidence. The panel affirmed the denial of relief on Muhammad’s claim that the application of the cold, calculated, and premeditated aggravator to his case violated the Ex Post Facto Clause.
During resentencing, the prosecution was allowed to present testimony from a detective recounting prior testimony and statements from other witnesses who did not themselves appear at the resentencing proceeding. The testimony served to rebut the defense contention that the murder of the kidnaped victims had not been premeditated but occurred only when Muhammad became aware that police and aircraft were following him. The Florida Supreme Court denied Muhammad’s Confrontation Clause challenge to the testimony at issue on the ground that Muhammad had not properly objected. The panel majority declined to decide whether the procedural bar applied by the state court was adequate to preclude federal review. Instead, the claim was addressed de novo and rejected. The panel majority found that hearsay testimony is admissible at capital sentencing and a defendant’s rights under the Confrontation Clause are not violated if the defendant has an opportunity to rebut the hearsay. Here, Muhammad was allowed to both cross-examine the testifying witness and to present his own witnesses. In addition, he had the opportunity to cross-examine two of the three absent witnesses during the guilt phase of his trial.
The three members of the panel agreed that the Florida Supreme Court’s rejection of Muhammad’s Ex Post Facto claim was not unreasonable. (The state court had ruled that application of the cold, calculated, and premeditated aggravator at Muhammad’s resentencing was not unconstitutional even though the aggravator did not exist at the time of the capital offense. The state court reasoned that the aggravator did not disadvantage Muhammad because it merely reiterated in part what was already present in the elements of premeditated murder and actually added limitations to the elements of the crime for use in aggravation.)
Wilson dissented from the majority’s ruling on the Confrontation Clause claim. First, Wilson believed the panel should have addressed the procedural default question and ruled that the procedural bar was inadequate to preclude federal review of the claim. This was because the type of standing objection made by Muhammad to the hearsay testimony was routinely accepted by Florida courts as sufficient to preserve Confrontation Clause arguments on appeal. Second, Wilson expressed his agreement with the district court’s ruling that the Confrontation Clause applies in capital sentencing proceedings.