Koon v. State

• Docket Number: 20230139
• Decision Date: 28 December 2023
• Citation: 2023 ND 247
• Parties: Jerome Wesseh Koon, Jr., Petitioner and Appellant v. State of North Dakota, Respondent and Appellee
• Court: North Dakota Supreme Court

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2023 ND 247

Jerome Wesseh Koon, Jr., Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee

No. 20230139

Supreme Court of North Dakota

December 28, 2023

Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Reid A. Brady, Judge.

Kiara C. Kraus-Parr, Grand Forks, N.D., for petitioner and appellant.

Jason Van Horn, Assistant State's Attorney, Fargo, N.D., for respondent and appellee.

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OPINION

TUFTE, JUSTICE.

[¶1] Jerome Wesseh Koon, Jr., appeals from a district court judgment denying his application for postconviction relief. He argues the district court erred in denying his application and committed reversible error by considering evidence outside the record. We affirm the judgment.

I

[¶2] Jerome Koon was convicted by a jury of reckless endangerment, tampering with physical evidence, unlawful possession of a firearm, and terrorizing as a result of a shooting in Fargo in January 2021. Koon appealed the criminal judgment, challenging the sufficiency of evidence, and we summarily affirmed. State v. Koon, 2022 ND 142, 977 N.W.2d 740.

[¶3] Koon filed an application for postconviction relief. An evidentiary hearing was held on March 10, 2023. Trial counsel and Koon testified. After the hearing, the district court issued a notice of intent to take judicial notice of the clerk's trial notes to determine whether Koon was present in the courtroom when the parties discussed a jury question. Koon objected. The district court did not take notice of the clerk's notes. The court denied Koon's application for postconviction relief.

II

[¶4] Koon argues the district court committed reversible error by considering evidence outside the record.

[¶5] Koon argues he was not present for a question from the jury on October 11. The October 11 transcript does not explicitly note Koon's presence while addressing the jury question. At the evidentiary hearing, Koon testified, "Yes, I believe they called me into the courtroom when a question was presented." He later stated he could not remember. Finally, after refreshing his recollection with the transcript, and in response to prompting from his counsel, Koon stated, "No, I don't think I was there."

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[¶6] After the hearing, the district court provided notice under N.D.R.Ev. 201(c)(1) of the court's intent to take judicial notice of the clerk's trial notes recorded in the trial court case management system in the underlying criminal case, stating, "On the record with counsel and Defendant present; Parties discuss jury question" at 1:28 on October 11, 2021. The court cited N.D.R.Ev. 201(b)(2) as authority. The court sought any objection from the parties.

[¶7] Koon objected, arguing the "record is disputed by Mr. Koon and the official transcript of the proceeding, it is hearsay without an exception, and lacks both foundation and authentication." The State responded, citing Chandler v. United States, 378 F.2d 906, 909-10 (9th Cir. 1967), explaining "any information which the court finds acceptable as establishing what the official record is, may provide the basis for judicial notice of the court's records."

[¶8] The district court's findings on the disputed fact of Koon's presence or absence explained that it had not relied on the clerk's trial notes:

During deliberations on the fifth day of trial, Koon was held in a holding cell at the courthouse. As Koon initially, and most credibly, testified, Koon was brought into the courtroom when the jury question was discussed at approximately 1:30 p.m. that day. The Court thus does not deem it necessary to take judicial notice of the clerk's trial notes

A

[¶9] Rule 201, N.D.R.Ev., governs judicial notice of adjudicative facts. N.D.R.Ev. 201(a). "The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." N.D.R.Ev. 201(b). "The court may take judicial notice at any stage of the proceeding." N.D.R.Ev. 201(d). "[A] party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard." N.D.R.Ev. 201(e).

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[¶10] We have explained the notice requirement is paramount. Atkins v. State, 2021 ND 83, ¶ 10, 959 N.W.2d 588 (explaining a court may take judicial notice under Rule 201 of prior postconviction proceedings but must give the applicant notice and an opportunity to respond before summarily dismissing the application on the basis of matters outside the record); see also Chisholm v. State, 2014 ND 125, ¶ 12, 848 N.W.2d 703 (explaining in a postconviction relief proceeding a court may consider matters outside the pleadings but it was reversible error to grant summary disposition when the applicant was not provided with notice and an opportunity to present evidence supporting his claims); Overlie v. State, 2011 ND 191, ¶ 12, 804 N.W.2d 50; Wong v. State, 2010 ND 219, ¶ 13, 790 N.W.2d 757.

[¶11] We review a district court's decision to take judicial notice under an abuse of discretion standard. Orwig v. Orwig, 2021 ND 33, ¶ 6, 955 N.W.2d 34. "A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, it misinterprets or misapplies the law, or if its decision is not the product of a rational mental process leading to a reasoned determination." Id.

[¶12] The district court...