*1 Plaintiff-Respondent, of Wisconsin, State Defendant-Appellant- Leonard J. Harvey, Petitioner. Supreme Court argument No. Oral 00-0541-CR. December 2001. Decided
July 93WI (Also 189.) reported in 647 N.W.2d *3 defendant-appellant-petitioner there were For the public by Margaret Maroney, assistant state A. briefs Stephen argument by Weiss, P assis- defender, oral public defender. tant state argued plaintiff-respondent the cause was
For the attorney general, by Herman, assistant with Lara M. attorney Doyle, E. on the brief was James whom general. presents a SYKES, This S. J. case DIANE provi- challenge to instruction
constitutional judicial statute, Wis. Stat. notice sion Wisconsin's 902.01(7) (1997-98),1 applied element of a an penalty case. in a criminal enhancer charged Harvey, defendant, Leonard was 2. The possession deliver, within with intent to of cocaine with City The in the of Madison. base of Penn Park 1,000 feet possession to deliver cocaine with intent offense years prison. up punishable to ten was applicable penalty is com- enhancer, when offense protected places 1,000 feet of certain mitted within *4 potential (including city parks), maxi- the increased years. by imprisonment five mum to the will be to Wisconsin Statutes All further references otherwise indicated. 1997-1998 version unless objection, trial, 3. At over the defendant's judicial circuit court took notice Penn that Park was a city park purposes penalty of the enhancer, and 902.01(7) jury pursuant instructed the to Stat. Wis. accept judicially-noticed that it was to fact as true. The defendant was convicted of the enhanced offense. appeals
¶ 4. The
court
affirmed the conviction,
concluding
Harvey's
process
jury
due
trial
rights
jury
had not been violated
instruction
regarding
judicially-noticed
accepted
fact. We
re-
although
grounds.
view, and
affirm,
now
on different
Apprendi
Jersey,
(2000),
¶ 5.
v. New
States, 527 U.S. 4 this of constitutional subject application instructional error is of the harm- although Accordingly, error less rule. we conclude that judicial applied "city notice instruction as to the park" drug element of the enhanced offense this case was constitutional error, we nevertheless affirm. The harmless, error was because it cannot be not and is disputed park question city that the in this case is a park.
HH charged Harvey three with ¶ was Leonard 7. grams possession of or less of five counts: criminal cocaine Park, of "Penn deliver, 1,000 within feet intent to with contrary park," Stat. to Wis. state offense) (the 961.41(lm)(cm)l drug §§ and 161.492 base (the marijuana enhancer); possession penalty con- of obstructing § 961.41(3g)(e); an trary and to Stat. Wis. 946.41(1). § contrary to Stat. officer Wis. City jury. of trial, At tried to The case was 8. testified Michelle Riesterer Police Officer
Madison squad, patrolling she in her 22, 1998, on June while against Harvey leaning up of an the side observed apartment signs building Trespassing" had "No where squad, approached stopped Har- posted. her She been Harvey marijuana. vey, She told of smelled odor and trespassing, he at- and under arrest that he was tempted ensuing During foot leave the scene. Harvey motion his pursuit, make a with the officer saw Harvey was ar- After hand toward some bushes. left rested, two and found the bushes the officer searched containing baggies, cuts crack plastic six corner of each marijuana found was A amount trace cocaine. pocket. Harvey's that she measured Riesterer also testified 9. Harvey's Park, and Penn location
distance between feet. The State 1,000 than was less the distance that rested eliciting Penn evidence without its case Act by 1995 Wisconsin renumbered The statute was occurred charged offense Although July effective sub of the controlled relocation renumbering after information Chapter 161 to Chapter from laws stance at previously appearing penalty enhancer case cited the in this appar This § 961.49. Stat. § 161.49 instead Wis. Stat. cites the conviction judgment error. ently was a clerical correct statute. park type specified penalty was
Park in the county, city, village, enhancer, that is, "state, or town 961.49(l)(b)l. park." . Wis. Stat. during evidence, 10. At the close of the conference,
instruction the State moved amend the *6 county, city, information "to include the statement vil- lage park park." Harvey or town rather than state objected, claiming Harvey prejudice. also moved for a because, penalty directed verdict on the enhancer the put regarding not State had in evidence the status of county, city,village park." "state, Penn Park as a or town Harvey's response ¶ 11. In the motion, State reopen proof asked for leave to the in order to introduce testimony city park. fact, that Penn Park inwas, The County Dane Schwartz, Court, Circuit Stuart Honorable A. request
denied State's and instead took judicial city park. notice that Penn Park was a The objected. The court defense denied the defense motion penalty for a directed verdict on the enhancer. jury ¶ 12. When the returned was to the court- closing arguments room for instructions, State reopen proof purpose was allowed to for the limited informing judicial that the had court taken city park City that notice Penn Park is "a located in the of Madison." The court then instructed the judicial "[t]he Court has taken notice of certain facts you accept following are directed to as true: city park City Penn Park is a Dane located in the Madison, County, Wisconsin." The returned a verdict of guilty on all three counts. sentencing, Harvey objection
¶ 13. At renewed his having judicial to the court taken notice Penn Park city park meaning penalty is a within the of the objection, The enhancer. circuit court noted consid- preserved appeal, ered it for but declined to revisit the prior ruling. Harvey years faced a maximum of 15 (ten prison years on the enhanced cocaine count for the drug plus years provided base offense five in the enhancer); penalty marijuana six on count; months obstructing and nine months on the count. In addition, pursuant separate count, on the enhanced cocaine to a provision penalty in the enhancer, Wis. Stat. § 961.49(2)(am), Harvey subject presumptive was to a years parole.3 minimum sentence of three without Harvey ¶ 14. The circuit court sentenced plus months on count, the enhanced cocaine four and respectively, marijuana months, six structing on the and ob- consecutively, counts, to run for a total of 52 prison. By operation presumptive months in of the provisions penalty Harvey minimum enhancer, of the ineligible paróle until he has served at least three years prison. Harvey appealed penalty on the issue of the appeals
enhancer, and the court of affirmed. court judicial concluded that notice in a criminal case was not *7 constitutionally improper. Harvey, See State v. 2001 WI App ¶59, 15, 242 2d 189, Wis. 625 N.W.2d892. appeals
¶ 16. The of held court that Penn Park's city park adjudicative appropri- status as a was an fact 902.01(1) judicial § ate for notice under Wis. Stat. (2), pursuant 902.01(7), § and that to Wis. Stat. the the judge required accept was to instruct to judicially-noticed fact as established. court did not judicial view the use of the notice instruction on an 961.49(2)(am) § provides Wisconsin Statute in relevant part: (a) person par. applies The court shall sentence a to whom at to years prison, penalties
least 3 but otherwise the for the crime apply. Except provided 961.438, place as in s. the court shall not 973.01(6), person probation. Except provided on as in s. person eligible parole is not she has at until he or served least 302.11(1). years, with no modification the calculation under s. mandatory fact a elemental sive as tantamount conclu- presumption operates fact, on an elemental which unconstitutionally to proving relieve State of its burden of
every ¶¶ element of the offense. id. See at appeals ¶ 17. The court of held that "because right by jury only criminal trial defendant's extends taking judicial fact, to contestable issues of of notice right." of an incontestable fact does not violate that Id. ¶at 19. The court concluded that the State had in fact proving carried its burden of city park, Penn Park's status as a evidentiary judicial albeit "via the device of by introducing testimony notice instead or other undisputed evidence fact." Id. at 20. We ac- cepted review.
hHHH question ¶ 18. The in this case is the constitution ality provision judicial of the instruction of the 902.01(7), applied notice statute, Wis. Stat. to an penalty element of a enhancer a criminal case. This question ais of law that we review de novo. See State v. Howard, 211 2d 269, 277, 564 N.W.2d753 process guaran- ¶ 19. The Fifth Amendment's due applied by operation tee,4 to the states of the Four- protects against teenth Amendment,5 "the accused con- except upon proof beyond viction a reasonable doubt of 4 The Fifth provides: person Amendment "No shall be held to answer for capital, crime, or otherwise infamous unless on presentment Jury.. .; or indictment of a Grand nor be deprived life, liberty, or property, process without due *8 ...." law 5 The Fourteenth provides: Amendment "No shall State any make or enforce abridge law which shall privileges or
450
every
necessary
fact
the crime
constitute
with which
charged."
(1970);
Winship,
In
358,
he is
re
397 U.S.
364
(1989);
Carella v.
491 U.S.
California,
see also
265
may
"deprive
Kuntz,
2d at
160 Wis.
736. States
not
liberty
prosecution proves beyond
accused of
unless the
every
charged
a reasonable doubt
element of the
of
Carella,
fense."
¶ 20. The Sixth Amendment6 of trial important includes, criminal cases "as its most ele right jury, judge, ment, the to have rather than the requisite finding 'guilty.'" reach the of Sullivan v. (1993); Louisiana, 508 U.S. 277 v. see also State ("where Peete, 4, 19, 185 Wis. 2d 517 N.W.2d149 jury, proof the finder of fact is a of all essential elements jury"). means, course, must be tendered to the This "may judge State, that a not direct a verdict for the no overwhelming Sullivan, matter how the evidence." 508 Howard, 279; 211 277; U.S. at see also Wis. 2d at State McAllister, 532, 533, 2d N.W.2d Supreme United States Court has re- cently principles held that these extend to the elements penalty Apprendi, enhancers. In at U.S. constitutionality Supreme Court considered the of New Jersey's provided law, "hate crimes" which for an in- judge penalty preponder- found, creased when the evidence, ance of the that the defendant committed the States; any immunities of citizens of the United nor shall State any life, liberty, deprive person property, or without due law, process deny any jurisdiction nor within person its equal protection of the laws." provides: prosecu The Sixth Amendment "In all criminal
tions, enjoy right speedy public the accused shall to a trial, by an ... ." impartial
charged
purpose
crime for the
of intimidation based on
gender,
race,
or
enumer-
another of several additional
improper purposes.
rejected
ated
The Court
New
Jersey's argument that its "hate crimes" law constituted
"sentencing
"[o]ther
factor,"
a mere
and held that
than
prior
any
conviction,
the fact of a
penalty
that
the
fact
increases
beyond
prescribed statutory
a crime
jury,
proved
maximum must be
to a
submitted
beyond
Apprendi,
a reasonable doubt."
¶ 22. The Sixth Amendment
to trial
process requirement
and the Fifth Amendment due
proof beyond
obviously
a reasonable doubt are
interre-
Sullivan,
lated.7 See
¶ 24. not claim is does that notice constitutionally always improper cases, in criminal nor argue application he does that the circuit court's judicial city park notice to Penn Park's status as a rights. violated his constitutional focus of his challenge jury is on the constitutional instruction re- garding judicially-noticed Harvey argues fact. jury the circuit court's instruction to the that it must accept judicially-noticed regarding as true the fact Penn city park mandatory operated status as a Park's as presumption conclusive on an elemental fact of the process enhanced offense in violation of due and his rights.8 trial judi- ¶ 25. The instruction from derives provides: statute, cial notice which 8 Harvey entirely clear is not about whether this is a facial 902.01(7) challenge challenge § or to Wis. Stat. the statute hand, argues broadly here. On the one he that we applied sever all cases from operation should criminal Wis. Stat. 902.01(7); hand, on emphasizes the other he his chal lenge only of the instruction application is statute's "city to the element of the enhanced offense requirement park" (1) SCOPE. adjudicative notice of facts. Judicial 902.01 adjudicative only judicial notice of governs This section facts.
(2) judicially A noticed fact OF FACTS. KINDS it subject dispute in that not to reasonable must be one (a) the territorial generally known within is either (b) capable of accurate jurisdiction of the trial court or to sources whose ready determination resort reasonably questioned. be accuracy cannot (3) judge A or court DISCRETIONARY. WHEN notice, or judicial requested not. may take whether (4) judge A or court shall WHEN MANDATORY. judicial party supplied if requested'by take notice necessary information. with the A party TO BE HEARD. OPPORTUNITY 'timely to be request opportunity to an upon entitled taking judicial notice and propriety heard as to prior noticed. In the absence of the tenor of the matter notification, may judicial after request made *11 been taken. notice has
(6) Judicial notice TIMING OF TAKING NOTICE. any stage may proceeding. taken at of judge THE JURY. The shall INSTRUCTING any jury accept as established instruct facts judicially noticed. added). § Stat. 902.01 (emphasis must, it the State part, agrees, 26. For its convict Harvey that the elemental facts necessary (the offense and the drug the enhanced offense base applied" an "as presenting in this We view the case as case. argument challenge, any to consider broader and decline unconstitutionality. facial enhancer)
penalty must be submitted to the and proven beyond penalty reasonable doubt. en- provides: hancer 961.41(l)(cm), (f),
If any person (d), (e), violates s. (h) (g), by or delivering distributing, or or violates s. (h) 961.41(lm)(cm), (d), (e), (f), (g) by possessing or distribute, cocaine, with intent to deliver or cocaine base,... delivery, and possession distribution or any circumstances, takes place following under of the imprisonment the maximum term of prescribed by law may years: for that crime be increased . . .
(b)
person
While the
or on or otherwise within
1,000
any
following:
feet of
state,
A
county, city, village
park.
or town
961.49(l)(b)l
added).
(emphasis
Wis. Stat.
Because
prescribed
penalty
the statute
increases
maximum
drug
underlying
Apprendi requires
for the
offense,
proven
its elements be submitted to the
beyond
Apprendi,
a reasonable doubt.9
¶ 27. The State considers the
enhancer as
purposes
a whole to be the elemental fact for
Apprendi
merely
park's
characterizes the
status as
—it
"sub-part
although
of an
it concedes that
element" —
requirement
park's
both the statute's distance
and the
beyond
proven
status must be submitted to the
language
plainly
a reasonable doubt. The
of the statute
("within
requires proof
proximity
of two distinct facts:
feet")
("a
particular protected place
1,000
state,
and a
9 It should be noted
Apprendi
v. New
that even before
Jersey,
(2000),
penalty
county, or Proof of one without town for conviction. read the other would be insufficient We containing element a the statute as not one with require- sub-part, elemental facts—a distance but two place particularized protected ment and a —both jury proven beyond the and which must be submitted to a doubt. reasonable jury question, the then, 28. The is whether 902.01(7), § by ap- required as
instruction plied Wis. Stat. penalty protected place element of to the relieving case, enhancer in this had the effect of proof invading province of State of its burden of or jury Harvey's element, on that violation of Fifth rights. appeals Amendment The court of held and Sixth penalty not, that it did because the enhancer was fact decision, to the for and the State carried submitted way proving although by elements, its burden of its "evidentiary judicial the testimony device" of notice rather than Harvey, App 59,
or other evidence. 2001 WI specifically, ¶ 20. More the court held that the trial only right fact," "extends to contestable issues of "right require prove the defendant's the State to charges beyond pro- criminal a reasonable doubt is opportunity challenge proffered tected fact being meeting 'incontestable,' as not or otherwise not requirements judicial notice under Wis. Stat. ¶¶ 19, 902.01." Id. at disagree. appeals' ¶ 29. We The court of rationale principle conflicts with the well-established process rights encompass defendant's due trial jury, right judge, to have the rather than the decide every requisite degree offense, element of the to the beyond certainty. Here, reasonable doubt the status of county, alleged protected place city, a "state, village park" or town is an element of the enhanced *13 jury jury accept offense. The instruction directed the judicially-noticed alleged pro- as true the that the fact place, city park; Penn Park, words, tected is a other it directed the to find an element of the enhanced instruction, therefore, offense. The had the same effect mandatory presumption as a conclusive on an element offense, of the which is unconstitutional under Sand- strom and Kuntz. presumptions
¶ 30. on Wisconsin's statute requires criminal cases the circuit court to instruct the may, required accept to, it but is not presumed fact: Presumptions
903.03 in criminal ... cases. (2) The judge SUBMISSION TO JURY. is not against authorized to find a presumed fact the ac- cused. .. . THE INSTRUCTING JURY. Whenever presumed against
existence of a fact the accused is jury, judge give submitted to the shall an instruc- jury may regard tion that the law declares that the fact, basic of the presumed facts sufficient evidence require but does not it to do so. added). (emphasis
Wis. Stat. 903.03 constitutionally a It has been noted that " presumption' presumption at 'criminal is not a valid finding simply permissive inference, is, all but may grounded upon of fact that circumstantial judicially- permissive Thus, evidence. inference is approved logic that endorses evidence of a basic fact as circumstantially permit, compel, an sufficient to but not State, 595, 607, 2d inferred fact...." Genova v. (Ct. 1979) (footnote omitted). App. 283 N.W.2d483 constitutionality any particular ap- ¶ 32. The plication "evidentiary judicial of the device" of notice (including, necessarily, constitutionality any par- judicial application ticular tion) of the notice instruc- is measured same standards as the consti- tutionality evidentiary presumptions: and presumptions staple
Inferences are a of our system fact-finding. necessary adversarial It is often *14 for the trier of fact to determine the existence of an is, element of the crime —that an "ultimate" or "elemen- tal" fact —from the existence of one or more "eviden- tiary" evidentiary or "basic" facts. The value of these devices, validity and their under the Due Process Clause, vary case, however, depending from case to on strength the particular the connection between the basic and elemental degree facts involved and on the to the which device curtails the fact-finder's to freedom Nonetheless, in independently. assess the evidence cases, criminal ultimate any test device's consti- tutional validity given in a case remains constant: device not responsibil- must undermine the fact-finder's trial, ity State, at based on evidence adduced to beyond the ultimate a reasonable doubt. In See find facts 358, 364; Winship, Wilbur, re Mullaney 397 U.S. 684, 702-703, County [Ulster U.S. n.31. at 791-2]. L.Ed.2d at (emphasis original).
Id. at 610-11 in judicial particularly, Here, or, 33. more notice— directing accept instruction to judicially-noticed applied fact as true —was to an ele- ment of the enhanced offense. This had the effect not merely undermining eliminating jury's oppor- but tunity independent, beyond-a-reasonable- reach an to element, doubt decision on that and was therefore incontestability constitutional error. of Penn Park's city park goes status as a to whether the error was constitutional instruc- harmless, not whether there was place. in the first tional error judicial governing notice The federal rule 34. requires instructed that that the
criminal cases any required accept may, conclusive to, "it but is not Harvey 201(g). judicially R. Evid. noticed fact." Fed. rule-making authority in the exercise our invites us to 902.01(7) § modify to Stat. context of this case to judicial notice rule criminal the federal conform to rule-making authority as do cases. decline to so. Our We practice statutory pleading applies rules of it case-deciding procedurally function, from our distinct regard- statutory requirements subject and is to certain ing opportunity public hearing. comment and See an Wis. Stat. 751.12.
f—I HH jury- judicial notice Our conclusion that applied in constitutional this case was instruction as type the matter. This of instructional error does not end subject per prejudicial, but, rather, is is not se error application Neder, rule.10See of the harmless error *15 Kuntz, 4; 160 2d at 738. U.S. at Wis. Supreme Neder, Court held that In 36. improperly omitted an element that instruction (there, judge it, decided the trial due
the offense because process contrary trial and to the defendant's analysis. subject rights) Neder, 527 harmless error harmless that the federal at 15. The Court noted U.S. 52(a) Rules of Criminal rule, Rule of the Federal error 10 (Ct. Leist, 34, 39, App. 414 45 2d N.W.2d State v. rule of automatic 1987), incorrectly per that there is a se stated ("[e]rrors harm type of this can never be considered reversal less"), limited extent is overruled. and to that
Procedure, that provides errors not affecting substan- tial shall rights disregarded, to all applies errors, properly preserved including constitutional ones. See id. at 7. 37. The Court acknowledged certain fun-
damental constitutional errors are not amenable to harmless error analysis "so harm- intrinsically —errors ful (i.e., as to automatic require reversal 'affect substan- tial rights') without to their regard effect on the outcome" —but said this "a comprised limited class" errors. Id. All other constitutional an including errors — erroneous instruction completely an ele- omitting ment of the offense —are subject to the harmless error rule: recognized
We have
that "most constitutional er
Fulminante,
rors can be harmless."
supra, at
"If
the defendant had
counsel and was
impar
tried
an
adjudicator,
tial
strong
there is a
presumption
any
other
may
constitutional errors that
have occurred are
subject
analysis."
Clark,
to harmless-error
Rose v.
570, 579,
460, 106
U.S.
92 L. Ed. 2d
S. Ct. 3101
Indeed,
"structural,"
we have found an error to be
subject
reversal,
thus
only
to automatic
"very
in a
States,
limited class of cases." Johnson v. United
461, 468, 137
718, 117
(1997)
U.S.
L. Ed. 2d
S. Ct. 1544
(citing
335,
Wainwright,
Gideon v.
372 U.S.
9 L. Ed. 2d
(1963)
799,
Unlike such defects as the
judge,
counsel or trial before a biased
an instruction
that omits an element of the
not necessar-
offense does
fundamentally
render a criminal
an
ily
trial
unfair or
determining guilt
unreliable vehicle for
or innocence.
Neder,
in original).
We have often
harmless-error
involving improper
single
instructions on a
ele-
cases
Evatt,
See, e.g.,
ment of the offense.
Yates v.
500 U.S.
(1991) (manda-
391,
432, 111
114 L. Ed. 2d
S. Ct. 1884
tory
presumption);
California,
rebuttable
Carella v.
218,
U.S.
105 L. Ed. 2d
(mandatory cases, presumption). rebuttable In other recognized improperly omitting we have that an ele- ment from the "easily analogized can to improp- erly instructing offense, on an element of the subject an analysis." error which is to harmless-error (citations Johnson, supra, omitted); at 469 see also 2, 5, Roy, v. 519 U.S. 136 L. Ed. 2d 117 California curiam) ("The (per S. Ct. 337 specific error at here —an issue error the instruction that defined the easily crime—is ... as 'misdescrip- characterized as a crime, tion of an element' of the as it is characterized as 'omission'"). an error of
Neder,
applying
of federal constitutional
principles
law to the
rule, Wisconsin,
federal harmless error
course,
has
its own statutory harmless error
rule that
is almost
identical
to the
federal
rule. Wisconsin Statute
805.18,
§
made
to criminal
applicable
cases Wis. Stat.
972.11(1),
§
reversal for error
prohibits
not
affecting
See State
party's substantial
Dyess, Wis.
rights.11
see also State v.
525, 547,
(1985);
2d
N.W.2d
Lindell,
the error of has affected the substantial of the party seeking judgment, to reverse or set aside the or to secure a new trial. ap- Dyess, case, error harmless our seminal principles determine the plied constitutional federal determining prejudice in proper criminal standard Dyess Dyess, itself concerned 2d at 544. cases. conclu- an erroneous that contained instruction presumption; however, court, concluded sive 903.03(3), Stat. violated Wis. the instruction ques- specifically constitutional to reach the declined any event, In Id. at 533-34. Sandstrom. tion under evaluating emphasized an standard for that the court error is whether the is the same harmlessness error's *18 statutory, or otherwise: constitutional, that, gradual merger of in view of the conclude We in to harmless thinking respect court's collective this error, of or com- whether omission prejudicial versus not, proportions or mission, of constitutional whether possi- there is a reasonable be whether the test should If it to the conviction. the error contributed bility that The burden of did, trial must result. reversal and a new error, beneficiary of no is on proving prejudice then, burden, to establish The state's here the state. the error possibility reasonable there is no the conviction. contributed to (citation
Dyess, footnote omit- 2d at 543 ted). for harmless this test The court considered 41. essentially for with the test consistent
error to be prejudice of counsel claim in an ineffective assistance Washington, 466 U.S. Strickland under did, however, Dyess, The court 2d at 544. 124 Wis. See ordinarily, proof: a the burden note distinction prove harmless- must from the error one who benefits ness, claim, of counsel ineffective assistance an but prejudice. prove n.ll. id. at 544 See must the defendant use of to Strickland's made reference The court also phrase probability" "reasonable rather than "reasonable possibility," meaning: but said the two had the same
Although [in the Court words, Strickland] uses probability" "reasonable outcome, of a different in con- trast to our use of "reasonable possibility," it is clear from the opinion Strickland that the Supreme Court's test is substantively the same as Supreme ours. The Court uses the "probability," word in the sense of explains likelihood. It that for a different outcome to be "reasonably probable" it need not be likely "more than not"; a reasonable probability of a different outcome is one that raises a reasonable doubt guilt, about "probability sufficient to undermine confidence in the proceeding. outcome" of the (citations omitted). Dyess, 124 at 544-45 step 42. Kuntz further, went and, consistent holding Dyess, applied with the broad harmless error analysis to instructional error of constitutional dimen- sion. In Kuntz, this court held that the use of a containing mandatory pre- instruction conclusive sumption on an elemental fact was constitutional error, subject but the application error nevertheless was Kuntz, harmless error rule. 160 Wis. 2d at 738. Kuntz, In the trial court had instructed building" that "a purposes mobile home is a *19 charged building. offense of arson of a Id. at 734. This court viewed the instruction as an unconstitu- mandatory presumption tional conclusive on an ele- ment of the offense, but concluded that it was harmless, applying concurring opinion the framework of in to Carella, approach which advocated a more restrictive analysis harmless error in the context of conclusive presumptions. See id. at 738-40; Carella, see also 491 (Scalia, concurring). U.S. at 267-73 J., Neder, 44. In however, the United States Su- preme specifically rejected Court the more restrictive
464 13-14, U.S. at the Carella concurrence, approach of Chap- error analysis for the harmless instead opting (1967): U.S. 18 California, man v. element the omission of an
Having concluded that analy harmless-error subject to the error that is an conviction Neder's sis, question remains whether Chapman In the error was harmless. because can stand 705, 2d 87 S. Ct. 17 L. Ed. California, 386 U.S. (1967), determining the test for forth we set test, That error is harmless. a constitutional whether "beyond a reasonable said, appears it is whether we of did not contribute complained the error doubt that 24; Delaware v. 386 U.S. at see obtained." the verdict 674, 106 Van Arsdall, S. L. Ed. 2d 475 U.S. ("An should otherwise valid conviction Ct. may confidently reviewing court if the not be set aside record, error that the constitutional say, on whole doubt"). beyond a reasonable harmless was Neder, at 15-16. 527 U.S. Kuntz test for harm- while the Accordingly, 45. conclusive of unconstitutional in the context
less error (based now-rejected it was on presumptions concurrence) called has been of the Carella approach of the case —that proposition the basic into question, indeed error is instructional of constitutional this type been validated error analysis harmless subject to —has Neder. in Neder can- majority Court Supreme variety to a error rule as applied harmless vassed the concluding errors, ultimately constitutionally-based controlled, al- test same, C/iapmcm-based lan- different in somewhat the test it stated though guage: inquiry therefore, the harmless-error think,
We beyond it clear essentially the same: Is must found have a rational would doubt that reasonable *20 guilty the defendant To absent the error? set barrier high justify so that it could never be surmounted would very spawned criticism that the harmless-error error, place: doctrine in the regard- first "Reversal on judgment, encourages litigants less its effect judicial process to public abuse the bestirs the ridicule it."
Neder,
constitutional instructional error in this case was beyond harmless reasonable doubt.12 The error con- sisted of an instruction that the jury must accept judicially-noticed true, elemental fact as which oper- ated a mandatory presumption conclusive viola- tion of Harvey's due trial process rights. Had been instructed it may, not, but need accept judicially-noticed true, elemental fact as there have would been no constitutional violation, because the instruction would have operated per- as a missive inference rather than a conclusive presump- tion. 48. The elemental fact on which the jury was
improperly undisputed instructed and indisputable: correctly argument, The dissent notes that at oral State was ambivalent about analysis, harmless error and that States, no one cited Neder v. United U.S. 1 Dissent however, rule, injunction at 68. The harmless error is an on courts, which, if applicable, the required courts are regardless address parties whether the do. See Wis. Stat. 805.18(2) (specifying judgment that no shall reversed determines, examining record, unless the court after the entire complained that the error rights has affected the substantial party). of a *21 otherwise.13 says no one and city Park is a park,
Penn a a doubt that reasonable beyond is clear it Accordingly, found the would have instructed, rational properly Under these offense.14 of the enhanced guilty defendant the contributed to error cannot have circumstances, the verdict. judi- conclude that Therefore, while we 49. instruction, "city park" applied as
cial notice case, in offense this drug enhanced element of the in presumption conclusive mandatory as a operated Amendment Fifth and Sixth of Harvey's violation A consti- his conviction. nevertheless affirm we rights, if is "clear beyond harmless it other error is tutional or have rational would that a a reasonable doubt Neder, 527 the error." absent guilty defendant found the 13 city noted, Park is a Penn "[t]hat of appeals As the court City Madison contacting the readily by may verified park visiting or even Division, consulting publications, its Parks Harvey, v. State (http://wwiv.ci.madison.wi.us/parks)." its website 189, 625 892. We 8, 242 Wis. 2d N.W.2d App WI 2001 circuit court argument reject Harvey's alternative record the basis for the by failing to state discretion abused its city Penn Park is notice that taking judicial which it was upon city park independently is Penn Park's status park. event, disputed. not verifiable, any readily 14 opinion that this would assert that the dissent It is odd harmless-error test." abandoning Chapman Neder as "views and refined Neder reaffirmed do not. Dissent at We test, it. The Court's it did not abandon error harmless Chapman can be restating the test language different use of somewhat takes to meet of what it clarification as a further viewed "did not that an error to conclude test; is, that in order meaning Chapman, within to the verdict" contribute doubt that "beyond a reasonable conclude must be able to court guilty absent the defendant have found jury would a rational Neder, U.S. at 18. the error." By at 18. standard,
U.S. this this error was harmless beyond a reasonable doubt.
By appeals the Court.—The decision the court of is affirmed. (concurring).
¶ 50. N.
CROOKS,
PATRICK
J.
I
agree
majority's
today
with the
decision
and write
only
separately
to comment on the harmless error
analysis.
past
years,
For at
least
this court has
formulating
wrestled with
a standard for harmless
e.g.,
See,
Grant,
error.
State v.
139 Wis. 2d
(1987);
State,
N.W.2d
Wold v.
Wis. 2d
(1973);
Spring,
356-57, 204 N.W.2d482
State v.
48 Wis.
(1970);
333, 339-40,
2d
State,
179 N.W.2d841
Pulaski
*22
(1964).
24
450, 456-57,
Wis. 2d
¶ write, then, 51. I to note that the harmless dispute put finally error to rest in at Wisconsin, least majority opinion by here and cases, both in criminal 2d Tomlinson, 91, 2002 WI in State v. establishing By if error is harmless that an 367. N.W.2d beyond a rational doubt that a reasonable clear "it is guilty absent the defendant have found would (1999), States, this 1, 18 527 U.S. United error," Neder longer finally no the confusion corrected court has relying major possibility." The "reasonable on the term language ity, from Neder forth the has set Supreme why explains the United States the reason manner it error rule in the harmless stated the Court did. never be sur- high that it could so
To set a barrier very spawned justify the criticism mounted would place: in the first "Reversal doctrine harmless-error judgment, error, of its effect on regardless judicial process litigants to abuse encourages to ridicule it." public bestirs Traynor, Roger (quoting J. 18. Neder, U.S. at (1970)). Error 50 Harmless Riddle of wholeheartedly agree this articula- with I 52. justification harmless sense for a common tion of the beyond clear, at whether it is that looks rule —one error a rational error, that absent doubt a reasonable verdict.1 the same have reached would respectfully concur. reasons, I ¶ 53. For these JON R that Justice to state I am authorized *23 joins this concurrence. WILCOX ABRAHAMSON,CHIEF JUS- S. SHIRLEY 55. 1 posi dissenting opinion's disagree with the respectfully I v. in State majority here and test, by adopted tion that this 367, 502, N.W.2d Tomlinson, 91, 2d 648 254 Wis. 2002 WI U.S. "misstates Chapman approach" and "ignore[s] Dissent, 75. test." harmless-error Supreme Court's 469 (dissenting). TICE The circuit court instructed the present judicial in the case that it had taken notice city park explicitly fact Penn Park accept "directed" the that fact as true. That the question city park penalty-enhancing area in is a is a drug element of this offense. majority opinion
¶ 56. The concludes that mandatory nature of the instruction on this element of drug the enhanced offense was constitutional error. I agree. majority opinion
¶ 57. The
then concludes that
agree
the constitutional error was harmless error. I
majority opinion
analy
with the
that a harmless-error
may
applied
sis
an
instructional error of constitu
tional dimension. This court
Kuntz,
so held in State v.
(1991).
Wis. 2d
467 N.W.2d531
disagree
majority opinion,
I
with the
how-
adopts
ever, when it abandons Kuntz and
Neder v.
(1999),
States,
Supreme
United
HH ¶ 59. I would not Kuntz, abandon In Kuntz. this adopted reasoning court of Justice Antonin Scalia concurring opinion his in Carella v. California, 491 U.S. (1989): applies The harmless-error rule in limited mandatory- circumstances conclusive when trial court uses presumption regarding an element of a crime. present
¶ 60. The case does not fall within one specified by the limited circumstances Kuntz it and does Chapman California, U.S. *24 in fall within Justice Scalia's concurrence Carella. not fall case within one those limited Nor does Neder exceptions in Justice and Kuntz would which Scalia apply rule. the harmless-error narrowly an erroneous 61. Neder holds
jury an an element of offense is instruction that omitted subject analysis harmless-error to a when evidence overwhelming and omitted element is uncontested. quipped has that Neder "elevated the One commentator analysis"2 policy harm, no over and is 'no foul' reasoned "a call."3 bad majority opinion applies The Neder to the by
present court, which, contrast, case in the circuit objection defendant, instructed the over the by taking the court an element was satisfied though judicial element, notice of the even no evidence regarding the had admitted and the element been taking judicial circuit court did not state basis notice. disagrees with the Court's 63. Justice Scalia
expanded rule use of the harmless-error in Neder. guilty that a court cannot direct a Justice Scalia reasons culpability, no how clear the defendant's verdict matter right an accused the to a directed verdict denies because presents error that is not a trial structural Why subject analysis.4 then, Justice harmless-error Approach Harmless Sporting Carter, Linda A. Harm, Supreme "No No Cases: The Court's Error in Criminal States, in v. United 28 Am. J. Crim. L. Foul" Debacle Neder 3Id. States, (Scalia, J., Neder United U.S. dissenting According to Justice concurring part part). Scalia, review is that very premise structural-error "[t]he 'right' are for the reflecting the result reversed even convictions Id. right." at 34. protecting a basic sake of "taking asks, Scalia should one of the elements of the away differently *25 crime from the ... treated from taking away prove all of them one, failure to no —since prove utterly prevents all, less than failure to convic- allowing appellate Scalia, tion"?5For Justice an to court guilt decide or innocence on an of element a crime "appellate trample jury's allows courts to over the function."6 by
¶ 64. are bound We the decisions of the U.S. Supreme interpreting Court in the U.S. Constitution. by But Supreme arewe not bound the of decisions the U.S. interpreting Court in the Wisconsin Constitu- tion. jurisprudence supports interpret- 65. Wisconsin
ing the Wisconsin Constitution in accordance with the Kuntz decision. The drafters of the Wisconsin Consti- great placed importance by right tution on the to a trial jury. I, In Article Section the Wisconsin Constitution guarantees right an in a accused criminal the to action stating part prosecu- trial, in in "all criminal enjoy right... speedy tions the accused shall to a public impartial jury."7 trial an guilt,
¶ 66. To determine the fact-finder must first right decide each of a element crime. The trial, to 5Id. 33. at 6Id. at 36. Scalia
Justice
concluded in Carella v. California, 491 U.S.
(1989),
mandatory
that the
of
use
presumptions
conclusive
impermissible
is
in
"overriding
because
addition to
pre-
[the]
sumption
accused,"
innocence with which the law
endows
it
fact-finding
"invade[s] [the]
which in a
function
criminal case
assigns
Carella,
the law
to
solely
jury."
Neder, admonition about Blackstone's drawing upon juries, guide should inroads on the making powers in the jury guarantee this interpreting court Wisconsin Constitution: (if the ingredient of defen- pragmatism
And as for the guilty, why go through the unquestionably dant again?), quote it suffices trying him trouble again: Blackstone once *26 jury right] on the [intrusions owever convenient
"[H]
first,
doubtless,
arbitrary
(as,
powers,
all
may appear at
convenient,)
executed,
yet let it be
are
most
well
the
delays
little inconveniences
again remembered that
and
free nations
justice
price
are the
that all
in the forms of
matters;
in
liberty more substantial
pay
must
for their
history
provision,
State v.
of the
of this
see
For a discussion
(1998).
234-240,
Hansford,
2d
nation of opposite spirit our that, constitution; though begun trifles, in precedent may gradually increase and spread to the juries questions utter disuse of of the most momen- Commentaries Blackstone, tous concern." 350. See States, also Bollenbach v. United 326 U.S. requirements Formal are often they scorned when way Court, however, stand in expediency. This obligation longer has an to take a view.
Neder,
II I not would abandon Chapman test. A harmless-error second issue major- raised in the ity opinion relates to how the federal constitutional test harmless-error should be stated. The harmless- error doctrine has several inspired decades commen- tary, criticism, skepticism, and attempted clarification.9 a year Just this court ago debated harmless error 9 See, e.g., Roger The Riddle Harmless Error Traynor, J. (1970) (proposing several different variations of the harmless- error standard on depending error); Harry the nature T. Human, Madison Lecture: To Edwards, Always Err Is But Not Legal Tolerated, Harmless: When Should Error Be 70 N.Y.U. L. Rev. (expressing skepticism practical that "in error"). application we can ever solve riddle of harmless *27 See also James Edward Wicht There Is Such Thing III, No as a Harmless Constitutional Error: Returning to a Rule of , Automatic Reversal (1997); 12 Gregory B.Y.U. Pub. 73L. Mitchell, Against "Overwhelming" Appellate Activism: Con- Review, straining Harmless Error (1994); 82 L. Calif. Rev 1335 Vilija Bilaisis, Harmless Error: Abettor Courtroom Miscon- of duct, (1983); 74 J. Crim. L. & Criminology 457 Kent A. Tess-
474 commentary scholarly Our cases several cases.10 error a work in the doctrine of harmless reveal that progress.11 may harmless-error Indeed there be several depending error.12 on the nature tests argue did the issue of harm- The State not present case. error in its When less brief argu- of harmless error at oral raised issue court explained that how ment, the State it was unsure present applied The error in the case. State harmless might present error in the case be that the asserted defendant did not as harmless because the viewed challenge park appeal. of the at trial or on the status acknowledged that the error Nevertheless, the State entity, wrong significant because could viewed party judge, finding had of fact. Neither made to the Neder case. referred previously,131 not I do think 70. As have written modify prudent apply or our this court
it is
Error
in the Court: Wisconsin's Harmless
Mattner,
Confusion
(1980).
,
Appeals
Rev. 643
For a
Rule
Criminal
Marq.
63
L.
function, and a
error and the review
discussion of reversible
Aldisert,
law,
Ruggero
case
see
J.
critique of Wisconsin
Readings,
Cases 706—42
Process:
Materials and
Judicial
10
Jayton
See,
Rights
e.g., In re Termination
Parental
S.,
768;
Nommensen
1,
2d
629
246 Wis.
N.W.2d
WI
Co.,
Ins.
246 Wis. 2d
American Continental
WI
113, 246
2d
Ripp,
Martindale v.
301;
2001 WI
629 N.W.2d
67,
Procedure at 938-39 ed. by greater twisting marked development have been doctrinal applying development standards turning than the rule."). harmless error S., (Abrahamson, C.J., Jayton concur at 25 246 Wis. 2d ring). 13 Id. 23-26. at *28 of
statement the harmless-error doctrine without the by parties, briefing argument benefit both oral on exploration issue, and an of the federal and cases state development and the historical The deci- law.14 regarding sion court's, harmless error is the but premise adversary system fundamental of our is that present argu- will advocates useful information and might ments that court not uncover.15 majority opinion recognizes ¶ 71. The Supreme approaches U.S. Court takes two different majority op. ¶ error harmless in Neder. See at The 46. approach "beyond appears first asks whether it rea- complained sonable doubt that the error of did not contribute to the verdict obtained" and from comes (1967). Chapman v. 386 California, 18, U.S. 24 See majority op. Neder, ¶ U.S. 17, 18, 19; 527 at at 44. approach, ¶ 72. The second which is set forth Neder, without citation in asks whether it is "clear beyond a reasonable doubt a rational would guilty have found the defendant absent the error." majority op. majority Neder, 18; U.S. at at 46. opinion approach then uses this second to assess harm- Majority op. less error. at emphasis 73. There is a different in the two
approaches. inquires The first whether the constitu- tional error conviction, contributed to the while the inquires pro- second whether untainted evidence overwhelming support vides for the conviction. Profes- analyzes Supreme sor LaFave cases the various U.S. Court discussing approaches these two and concludes Grant, See also State 2dWis. 406 N.W.2d (1987) (Abrahamson, C.J., concurring). 15Adam A. Milani Smith, and Michael R. Playing God: A Courts, Critical at Sponte Look Sua Appellate Decisions Tenn. L. Rev. 245 appeared forth to move back has Court that "the presence proof heavily upon relying between considering analysis, and guilt error in its harmless *29 inquiry."16 proof central to the less as analysis" guilt proof "presence of ¶ 74. The approach criticized has been second in the embodied fact-finding the Sixth usurping function that apply- jury, particularly when to a entrusts Amendment mandatory ing to conclusive review harmless-error "interpos- presumptions.17 refrain from Courts should 'super- process ing sort as some into themselves "18 jury.' ap- concurring opinions majority and 75. The Chapman approach ignore prefer en- parently tirely opinions only approach. adopt the second Supreme harmless-error Court's the U.S. thus misstate eye fluid nature to the a blind test and turn Supreme constitutional Court U.S. of the nuances law. case harmless-error forth, I dissent. reasons set For the 76. ANN that Justice to state I am authorized joins opinion. this BRADLEY
WALSH 16 27.6(e), at Procedure Criminal LaFave, Wayne R. McCallum, 1999). (2d 208 Wis. 2d also State v. See 958-59 ed. C.J., (Abrahamson, concur 489-90, 561 N.W.2d ring). a Record? Out Greabe, Spelling Guilt John M.M. Mandatory Presumptions Conclusive Review
Harmless-Error Misdescriptions, B.U. L. Rev. and Elemental
18 Id.