 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
PETERSEN v. STATE12/20/1996
d statement about Petersen's probation to the jury. The judge did so without objection from Petersen's attorney.
On appeal, Petersen does not dispute the trial judge's authority to take judicial notice of the starting date, length, and conditions of Petersen's probation. See Lemon v. State, 522 P.2d 160, 162-63 (Alaska 1974) (upholding a judge's authority, in an escape prosecution, to take judicial notice of the defendant's prior conviction and sentence, thus establishing that the defendant had escaped from a jail to which he had been confined "by direction of a court"). However, Petersen contends
that the trial judge misinstructed the jury concerning the evidentiary effect of these judicially noticed facts.
The judge gave two jury instructions that are pertinent to Petersen's claim. Jury Instruction No. 4 told the jurors that they were the ones who must ultimately evaluate the credibility and effect of all evidence, including judicially noticed facts:
vidence is presented to you because it is the jury's exclusive duty to decide what facts of this case have been proved beyond a reasonable doubt and to apply the appropriate law to those facts. . . .
The court will rely on you to determine the facts. This must be done . . . solely from a fair consideration of the evidence presented to you. There are five sources from which evidence may be presented to you: (1) the sworn testimony of witnesses . . .; (2) all exhibits admitted into evidence . . .; (3) facts, if any, admitted to or stipulated to by the attorneys; (4) all facts, if any, of which the court takes judicial notice; and (5) the presumptions stated in these instructions.
Jury Instruction No. 23, however, prescribed a more limited role for the jury with regard to certain facts:
I have told you that it is up to you to decide what evidence you believe and the weight to be given [that evidence]. However, you must take as true the facts that the parties have agreed on and the facts that I have told you the law requires you to accept. It is for you to decide how these facts fit together with the evidence in the case and how much weight to give these facts.
At the close of the evidence, the judge distributed her proposed jury instructions so that the parties could review them. When the judge asked whether there was any objection to Instruction 23, both the prosecutor and the defense attorney answered "no".
Petersen concedes that he did not object to Instruction 23. Nevertheless, Petersen contends that the trial judge committed plain error by giving this instruction; he argues that this instruction told the jurors that they must accept judicially noticed facts as true.
Alaska Evidence Rule 203(c) establishes two different rules for judicially noticed facts. In civil cases, "the court shall instruct the jury to accept as conclusive any fact judicially noticed". However, in criminal cases, "the court shall instruct the jury that it may, but it is not required to," accept judicially noticed facts. This court has held that, even in the absence of an objection, a trial judge's violation of this rule (by telling a criminal jury that they are bound by judicially noticed facts) constitutes plain error. Rae v. State, 884 P.2d 163, 166-67 (Alaska App. 1994).
Here, however, we do not find plain error. The trial judge never explicitly told the jurors that they were bound to accept judicially noticed facts. Rather, Instruction 23 told the jurors that they were bound to accept "facts that the parties have agreed on and the facts that I have told you the law requires you to accept". Under this instruction, there were two categories of fact
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Alaska DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|