State v. Harvey
| Decision Date | 01 February 2001 |
| Docket Number | No. 00-0541-CR.,00-0541-CR. |
| Citation | 2001 WI App 59,242 Wis.2d 189,625 N.W.2d 892 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Leonard J. HARVEY, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs of Margaret A. Maroney, assistant state public defender of Madison.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Lara M. Herman, assistant attorney general, and James E. Doyle, attorney general.
Before Vergeront, Deininger and Zappen, JJ.2
¶ 1.
Leonard Harvey appeals a judgment of conviction for possession of cocaine with intent to deliver, within 1000 feet of a city park. Only the validity of his conviction on the penalty enhancer involving proximity to a park is at issue in this appeal. Harvey claims the trial court erred when it reopened the evidence and took judicial notice of the fact that Penn Park is a city park. We conclude that the trial court did not erroneously exercise its discretion under state evidentiary law, and further, that it did not violate Harvey's constitutional right to have a jury determine whether the State proved all of the elements of the offenses with which he was charged. Accordingly, we affirm the conviction.
¶ 2. The State charged Harvey with possession of cocaine with intent to deliver "within 1000 feet of Penn Park, a state park." The arresting officer testified at Harvey's jury trial. She identified the location where she had contact with Harvey and the location of Penn Park. She measured the distance between the point of contact and Penn Park as being less than 1000 feet. The State rested its case, and Harvey produced no additional evidence.
¶ 3. At the jury instruction conference following the close of testimony, the prosecution moved to amend the information to describe Penn Park as a "county, city, village or town park" rather than a "state park." Defense counsel argued that this would be prejudicial and that no evidence had been introduced regarding what type of park Penn Park is. He then moved for a directed verdict dismissing the penalty enhancer. In response, the prosecution moved the court to reopen the evidence so that it could call one witness, briefly, in order to establish the fact at issue. The State noted that
¶ 4. The court decided instead to take judicial notice that Penn Park is a state, county, city, village or town park, and to deny Harvey's motion for a directed verdict. On the record, the court took judicial notice that Penn Park is "a city park located in the City of Madison." The jury found Harvey guilty of possession of cocaine with intent to deliver, and further found that the offense was committed "within 1000 feet of Penn Park, a park." He appeals the judgment of conviction, seeking only "an order vacating the penalty enhancement."
¶ 5. Harvey claims the trial court erred in taking judicial notice that Penn Park is a city park. He argues that the State did not prove that Penn Park was a park within the meaning of WIS. STAT. § 961.49 (1999-2000),3 which provides in relevant part as follows:
The State responds that the trial court's actions properly conformed to statutory requirements for taking judicial notice. We agree.
¶ 6. WISCONSIN STAT. § 902.01 governs judicial notice and provides as follows:
[1-3]
¶ 7. We first consider the type of fact at issue. A judge may take judicial notice of "adjudicative" facts. WIS. STAT. § 902.01(1). Adjudicative facts are "simply the facts of the particular case," that is, "`who did what, where, when, how, and with what motive or intent.'" WIS. R. EVID. 59 Wis. 2d R26 & R30 (Federal Advisory Committee's Note to federal counterpart to WIS. STAT. § 902.01(1) (citation omitted)).4 For the purposes of our analysis, we accept the State's assertion that whether Penn Park is a city park falls within this category of facts because it deals with the "where" of the relevant events in this case.5
[4]
¶ 8. Next, we address whether the fact that Penn Park is a city park is the type of adjudicative fact of which the court may take judicial notice. See WIS. STAT. § 902.01(2). We are satisfied that the fact that Penn Park is a city park is "generally known within the territorial jurisdiction of the trial court," given that Penn Park is located in the City of Madison, which is within the territorial jurisdiction of the Dane County Circuit Court. Furthermore, the fact is one that is "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." That Penn Park is a city park may be readily verified by contacting the City of Madison Parks Division, consulting its publications, or even by visiting its website (http://www.ci.madison.wi.us/parks). Thus, the fact qualifies as a judicially noticeable fact under WIS. STAT. § 902.01(2).
¶ 9. The trial court decided sua sponte to take judicial notice of the fact at issue. It was within the court's discretion to do so. WIS. STAT. § 902.01(3). The court apparently concluded that it would be more efficient to take judicial notice of the fact than to have the State call a witness to establish it. We conclude that the trial court did not erroneously exercise its discretion in so doing, and that the court did not err in reopening the evidence in order to take judicial notice.
[5-7]
¶ 10. Under WIS. STAT. § 902.01(6), judicial notice may be taken "at any stage of the proceeding." The decision to reopen a case for additional evidence lies within the sound discretion of the trial court. State v. Vodnik, 35 Wis. 2d 741, 746, 151 N.W.2d 721 (1967). We will not reverse a discretionary decision by a trial court unless there is no reasonable basis for the decision. Wisconsin Pub. Serv. Corp. v. Krist, 104 Wis. 2d 381, 395, 311 N.W.2d 624 (1981). The State initially brought the issue to the fore when it moved to amend the information, and Harvey responded by moving for a directed verdict on the penalty enhancer. We conclude that it was not an erroneous exercise of discretion to reopen the evidence to cure a technical omission or oversight by the prosecution. Reopening for that purpose was not unfairly prejudicial to the defendant, given that he has made no claim, either here or in the trial court, that Penn Park is not a city park, or that the State would have been unable to submit evidence that it is one, had the matter been challenged during trial.
[8]
¶ 11. Harvey next contends that the trial court erred in taking judicial notice because the court was not supplied with the necessary information in support of the noticed fact. See WIS. STAT. § 902.01(4) (). However, because the court decided sua sponte to take judicial notice of the fact, the State was not required to provide information to support it. Because the "necessary information" was not supplied, the taking of judicial notice was not mandatory, but the absence of supporting information does not render erroneous the court's discretionary decision to notice the fact that Penn Park is a city park. See § 902.01(3) and (4).
[9]
¶ 12. Harvey also argues that the trial court erroneously exercised its discretion based on a mistake of law, because it was initially unsure whether the park is a "state, county, city, village or town" park. The court stated, however, that the terms are "merely adjectives," and what really mattered was whether it was a park. The court was clearly satisfied that Penn Park's status as a public, government-owned park was a judicially noticeable fact, and it was thus the type of park included within the statute. Moreover, as we have noted, Harvey does not dispute that Penn Park is a City of Madison park, and we discern no "mistake of law" in the trial court's actions.
¶ 13. In addition to challenging the trial court's action on state-law evidentiary grounds, Harvey contends that the trial court violated his right to due process by taking judicial notice that...
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State v. Harvey
...court of appeals affirmed. The court concluded that judicial notice in a criminal case was not constitutionally improper. See State v. Harvey, 2001 WI App 59, § 15, 242 Wis. 2d 189, 625 N.W.2d ¶ 16. The court of appeals held that Penn Park's status as a city park was an adjudicative fact ap......
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State v. Wasserman, No. 2007AP1441-CR (Wis. App. 8/26/2008)
...facts are `simply the facts of the particular case,' that is, `who did what, where, when, how, and with what motive or intent.'" State v. Harvey, 2001 WI App. 59, ¶7, 242 Wis. 2d 189, 625 N.W.2d 892 (citation and one set of quotation marks omitted). A judicially noted fact must be one not s......