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COURT OF APPEALS DECISION DATED AND FILED August 26, 2008 David R. Schanker Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Heath Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
Before Curley, P.J., Wedemeyer[1] and Kessler, JJ.
¶1 WEDEMEYER, J. Heath N. Wasserman appeals from a judgment of conviction for one count
of possession of a firearm by a convicted felon contrary to Wis. Stat. § 941.29(2)(a) (2005-06).[2] The judgment was entered pursuant to a
negotiated no-contest plea dated October 16, 2006, after the original charge
was dismissed because of a missing witness.
When reissued, the new trial court took judicial notice of the original
court’s findings in the suppression motion.
Wasserman contends that the trial court erred by taking judicial notice
of earlier findings from the original trial court rather than re-hearing the
suppression motion. Wasserman also
challenges the original trial court’s ruling on the suppression motion on the grounds
that the search was unlawful. Because
the trial court erred in taking judicial notice of the prior judge’s
discretionary decision in a dismissed case that never went to judgment, when
the court should have conducted a new suppression hearing and issued its own
decision, we reverse, set aside the no-contest plea, and remand for a new suppression
hearing.
BACKGROUND
¶2 In
December 2003, Wasserman was arrested and charged with being a felon in
possession of a firearm. The arrest
stemmed from a warrantless search of premises owned by Wasserman that he had leased
as a tavern. Wasserman filed a pretrial
motion to suppress the gun seized from the tavern inside the building he
owned. In August 2005, a two-day
suppression hearing was held and the trial court denied the motion at the close
of the suppression hearing, concluding that the police acted reasonably when
they discovered and seized Wasserman’s gun.
The case was set for trial. However,
on November 29, 2005, prior to jeopardy having attached, the trial court
dismissed the case without prejudice, on the State’s motion, due to the
unavailability of an important witness.
¶3 Several
months later, in April 2006, the State re-filed the charge of possession of a
firearm by a convicted felon, and again Wasserman filed a pretrial motion to
suppress the gun seized from the tavern of the building he owned. Due to rotation, the case came before a
different trial court judge. The State
opposed the suppression motion, arguing that the identical issue had been
“fully litigated” and denied at the August 2005 suppression hearing in front of
the original trial court. Wasserman
filed a reply brief insisting he was entitled to a second suppression hearing.
¶4 In
September 2006, the trial court denied Wasserman’s motion for a second
suppression hearing, noting that Wasserman offered no new evidence to justify
holding a second suppression hearing. In
order to protect Wasserman’s appeal rights, the trial court took judicial
notice of the transcript of the suppression hearing before the original trial court
and adopted that court’s findings and ruling as its own. In doing so, the trial court effectively
denied Wasserman’s motion without a hearing.
The trial court also expressly found that Wasserman retained his right
to challenge not only its decision to take judicial notice of the earlier
ruling, but also to challenge the substantive ruling itself.
¶5 At
an October 2006 hearing, Wasserman pled no contest to the charge of possession
of a firearm by a convicted felon, pursuant to a negotiated plea
agreement. There were no postconviction
proceedings. Wasserman appeals directly
from the judgment of conviction.
DISCUSSION
¶6 Wasserman
claims that the trial court erred in taking judicial notice of earlier findings
from the original trial court rather than independently hearing his suppression
motion. For reasons to be stated, we
agree that the trial court erred. We
reverse, set aside the no-contest plea and remand for a new suppression hearing.
¶7 A
court may take judicial notice of adjudicative facts under Wis. Stat. § 902.01. With regard to § 902.01, ‘“[a]djudicative
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
¶8 Here,
the trial court, in taking judicial notice and citing Wis. Stat § 902.01(2)(b), implicitly contends that the original
trial court’s ruling was an adjudicative fact capable of accurate and ready
determination by sources whose accuracy cannot reasonably be questioned. We disagree.
The trial court took judicial notice of the original trial court’s
ruling, not particular factual findings.
The trial court could have taken judicial notice of the fact that a
hearing occurred, but it cannot allow a prior court’s discretionary decision in
a dismissed case that never went to judgment, to substitute for the discretion
of the new court in a new case, albeit based on the same facts. Wisconsin case law allows a court to take
judicial notice of transcripts of hearings before another judge in the same case, State v. Mazur, 90 Wis.
2d 293, 304-05, 280 N.W.2d 194 (1979), or the court’s “own records in the cause,” Chris Schroeder & Sons Co. v.
¶9 The
State contends that Wasserman is not entitled to a second suppression hearing
because theories such as “law of the case,” res
judicata, collateral estoppel, claim preclusion, and issue preclusion
apply. We disagree. Because the first case was dismissed without
prejudice, and there was no decision on the merits, the aforementioned theories
do not preclude a second suppression hearing.
See City of Wisconsin Dells
v. Dells Fireworks, Inc., 197 Wis. 2d 1, 22-23, 539 N.W.2d 916 (Ct.
App. 1995) (“law of the case” has no application where “two cases have
proceeded separately, each before a different trial court”); State
v. Miller, 2004 WI App 117, ¶27, 274 Wis. 2d 471, 683 N.W.2d 485 (claim
preclusion does not apply where the prior action is dismissed without prejudice;
there must be a final judgment on the merits); Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 550, 525 N.W.2d 723 (1995) (“Issue preclusion refers to
the effect of a judgment in foreclosing relitigation in a subsequent action of
an issue of law or fact that has been actually
litigated and decided in a prior
action.”) (emphasis added). Based on the
foregoing, we conclude that the trial court erred in taking judicial notice and
adopting the previous suppression hearing ruling as its own. Accordingly, we reverse the judgment and
remand to the trial court with directions to conduct a new suppression hearing.
¶10 Wasserman
also challenges the original trial court’s substantive ruling on the
suppression motion on the grounds that the search was unlawful. This court’s decision to reverse and remand
for a hearing effectively makes Wasserman’s second argument moot. Therefore, we need not address it here. See Gross v. Hoffman, 227
Based on the
foregoing, we reverse the judgment of conviction and remand for new hearing.
By the Court.—Judgment reversed and cause remanded for further proceedings.
Recommended for publication in the official reports.