Harmless error applies to jury instruction.

Byline: David Ziemer

Even though a trial judge erroneously informed the jury that an element of the offense had been met, the error is subject to harmless error analysis, the Wisconsin Supreme Court held on July 9.

Penn Park a Protected Place

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.

At trial, over Harvey's objection, Dane County Circuit Court Judge Stuart A. Schwartz took judicial notice of the fact that Penn Park is a city park for purposes of the penalty enhancer, and instructed the jury pursuant to Wis. Stat. sec. 902.01(7) that it was to accept the judicially-noticed fact as true.

The jury found Harvey guilty, and he appealed. 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.

The Supreme Court accepted review, and affirmed, but on different grounds, in a decision by Justice Diane S. Sykes. The court held it was unconstitutional for the court to instruct the jury in that manner, but that the error was harmless.

Justice N. Patrick Crooks wrote a concurring opinion joined by Justice Jon P. Wilcox, and Chief Justice Shirley S. Abrahamson dissented in an opinion joined by Justice Ann Walsh Bradley.

Apprendi v. New Jersey

The court found that the recent U.S. Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466 (2000) requires that the elements of a penalty enhancer must be submitted to the jury.

In Apprendi, the Supreme Court considered the constitutionality of New Jersey's "hate crimes" law, which provided for an increased penalty when the judge found, by a preponderance of the evidence, that the defendant committed the charged crime for the purpose of intimidation based on race, gender, or some other enumerated improper purpose.

The Court rejected New Jersey's argument that its "hate crimes" law constituted a mere "sentencing factor," and held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a...