State v. Harvey

• Citation: 2002 WI 93,254 Wis.2d 442,647 N.W.2d 189
• Decision Date: 09 July 2002
• Docket Number: No. 00-0541-CR.,00-0541-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Leonard J. HARVEY, Defendant-Appellant-Petitioner.
• Court: United States State Supreme Court of Wisconsin

254 Wis.2d 442

2002 WI 93

647 N.W.2d 189

STATE of Wisconsin, Plaintiff-Respondent, v. Leonard J. HARVEY, Defendant-Appellant-Petitioner.

No. 00-0541-CR.

Supreme Court of Wisconsin.

Oral argument December 4, 2001.

Decided July 9, 2002.

For the defendant-appellant-petitioner there were briefs by Margaret A. Maroney, assistant state public defender, and oral argument by Stephen P. Weiss, assistant state public defender.

For the plaintiff-respondent the cause was argued by Lara M. Herman, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

¶ 1. DIANE S. SYKES, J.

This case presents a constitutional challenge to the jury instruction provision of Wisconsin's judicial notice statute, Wis. Stat. § 902.01(7) (1997-98),¹ as applied to an element of a penalty enhancer in a criminal case.

¶ 2. The defendant, Leonard Harvey, was charged with possession of cocaine with intent to deliver, within 1,000 feet of Penn Park in the City of Madison. The base offense of possession of cocaine with intent to deliver was punishable by up to ten years in prison. The penalty enhancer, applicable when the offense is committed within 1,000 feet of certain protected places (including city parks), increased the potential maximum imprisonment by five years. ¶ 3. At trial, over the defendant's objection, the circuit court took judicial notice that Penn Park was a city park for purposes of the penalty enhancer, and instructed the jury pursuant to Wis. Stat. § 902.01(7) that it was to accept the judicially-noticed fact as true. The defendant was convicted of the enhanced offense.

¶ 4. The court of appeals affirmed the conviction, concluding that Harvey's due process and jury trial rights had not been violated by the jury instruction regarding the judicially-noticed fact. We accepted review, and now affirm, although on different grounds.

¶ 5. Apprendi v. New Jersey, 530 U.S. 466 (2000), held that the elements of a penalty enhancer (other than a prior conviction) are elements of the offense, which, pursuant to the constitutional guarantees of due process and trial by jury, must be submitted to the jury and proven beyond a reasonable doubt. A jury instruction that directs a jury to accept as true a judicially noticed fact that constitutes an element of the crime is indistinguishable from a mandatory conclusive presumption on an elemental fact, which is unconstitutional under Sandstorm v. Montana, 442 U.S. 510, 524 (1979), and State v. Kuntz, 160 Wis. 2d 722, 737, 467 N.W.2d 531 (1991).

¶ 6. However, under Kuntz and Neder v. United States, 527 U.S. 1, 4 (1999), this type of constitutional instructional error is subject to application of the harmless error rule. Accordingly, although we conclude that the judicial notice instruction as applied to the "city park" element of the enhanced drug offense in this case was constitutional error, we nevertheless affirm. The error was harmless, because it cannot be and is not disputed that the park in question in this case is a city park.

I

¶ 7. Leonard Harvey was charged with three criminal counts: possession of five grams or less of cocaine with intent to deliver, within 1,000 feet of "Penn Park, a state park," contrary to Wis. Stat. §§ 961.41(1m)(cm)1 (the base drug offense) and 161.49² (the penalty enhancer); possession of marijuana contrary to Wis. Stat. § 961.41(3g)(e); and obstructing an officer contrary to Wis. Stat. § 946.41(1).

¶ 8. The case was tried to a jury At trial, City of Madison Police Officer Michelle Riesterer testified that on June 22, 1998, while patrolling in her squad, she observed Harvey leaning up against the side of an apartment building where "No Trespassing" signs had been posted. She stopped her squad, approached Harvey, and smelled the odor of marijuana. She told Harvey that he was under arrest for trespassing, and he attempted to leave the scene. During the ensuing foot pursuit, the officer saw Harvey make a motion with his left hand toward some bushes. After Harvey was arrested, the officer searched the bushes and found two plastic baggies, each containing six corner cuts of crack cocaine. A trace amount of marijuana was found in Harvey's pocket.

¶ 9. Riesterer also testified that she measured the distance between Harvey's location and Penn Park, and that the distance was less than 1,000 feet. The State rested its case without eliciting evidence that Penn Park was the type of park specified in the penalty enhancer, that is, a "state, county, city, village or town park." Wis. Stat. § 961.49(1)(b)1.

¶ 10. At the close of the evidence, during the jury instruction conference, the State moved to amend the information "to include the statement county, city, village or town park rather than state park." Harvey objected, claiming prejudice. Harvey also moved for a directed verdict on the penalty enhancer because the State had not put in evidence regarding the status of Penn Park as a "state, county, city, village or town park."

¶ 11. In response to Harvey's motion, the State asked for leave to reopen the proof in order to introduce testimony that Penn Park was, in fact, a city park. The Dane County Circuit Court, the Honorable Stuart A. Schwartz, denied the State's request and instead took judicial notice that Penn Park was a city park. The defense objected. The court denied the defense motion for a directed verdict on the penalty enhancer.

¶ 12. When the jury was returned to the courtroom for closing arguments and instructions, the State was allowed to reopen the proof for the limited purpose of informing the jury that the court had taken judicial notice that Penn Park is "a city park located in the City of Madison." The court then instructed the jury that "[t]he Court has taken judicial notice of certain facts and you are directed to accept the following as true: Penn Park is a city park located in the City of Madison, Dane County, Wisconsin." The jury returned a verdict of guilty on all three counts.

¶ 13. At sentencing, Harvey renewed his objection to the court having taken judicial notice that Penn Park is a city park within the meaning of the penalty enhancer. The circuit court noted the objection, considered it preserved for appeal, but declined to revisit the prior ruling. Harvey faced a maximum of 15 years in prison on the enhanced cocaine count (ten years for the base drug offense plus five years as provided in the penalty enhancer); six months on the marijuana count; and nine months on the obstructing count. In addition, on the enhanced cocaine count, pursuant to a separate provision in the penalty enhancer, Wis. Stat. § 961.49(2)(am), Harvey was subject to a presumptive minimum sentence of three years without parole.³

¶ 14. The circuit court sentenced Harvey to 42 months on the enhanced cocaine count, plus four and six months, respectively, on the marijuana and obstructing counts, to run consecutively, for a total of 52 months in prison. By operation of the presumptive minimum provisions of the penalty enhancer, Harvey is ineligible for parole until he has served at least three years in prison.

¶ 15. Harvey appealed on the issue of the penalty enhancer, and the 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 892.

¶ 16. The court of appeals held that Penn Park's status as a city park was an adjudicative fact appropriate for judicial notice under Wis. Stat. § 902.01(1) and (2), and that pursuant to Wis. Stat. § 902.01(7), the judge was required to instruct the jury to accept the judicially-noticed fact as established. The court did not view the use of the judicial notice instruction on an elemental fact as tantamount to a mandatory conclusive presumption on an elemental fact, which operates to unconstitutionally relieve the State of its burden of proving every element of the offense. See id. at ¶¶ 18, 20.

¶ 17. The court of appeals held that "because a criminal defendant's right to trial by jury extends only to contestable issues of fact, the taking of judicial notice of an incontestable fact does not violate that right." Id. at § 19. The court concluded that the State had in fact carried its burden of proving Penn Park's status as a city park, albeit "via the evidentiary device of judicial notice instead of by introducing testimony or other evidence of the undisputed fact." Id. at ¶ 20. We accepted review.

II

[1]

¶ 18. The question in this case is the constitutionality of the jury instruction provision of the judicial notice statute, Wis. Stat. § 902.01(7), as applied to an element of a penalty enhancer in a criminal case. This is a question of law that we review de novo. See State v. Howard, 211 Wis. 2d 269, 277, 564 N.W.2d 753 (1997)

.

[2]

¶ 19. The Fifth Amendment's due process guarantee,⁴ applied to the states by operation of the Fourteenth Amendment,⁵ protects "the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970); see also Carella v. California, 491 U.S. 263, 265 (1989)

; Kuntz, 160 Wis. 2d at 736. States may not "deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense." Carella, 491 U.S. at 265.

[3]

¶ 20. The Sixth Amendment⁶ right of trial by jury in criminal cases includes, "as its most important element, the right to have the jury, rather than the judge, reach the requisite finding of `guilty.'" Sullivan v. Louisiana, 508 U.S. 275, 277 (1993); see also State v. Peete, 185 Wis. 2d 4, 19, 517 N.W.2d 149 (1994)

("where the finder of fact is a jury, proof of all essential elements must be tendered to the jury"). This means, of course, that a judge "may not direct a verdict for the State, no matter how overwhelming the evidence." Sullivan, 508 U.S. at 277; ...