State v. Michael O. Statler

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 11, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal Nos. 2019AP764-CR Cir. Ct. Nos. 2017CF1048
2017CF627
2019AP765-CR 2016CF2354
2019AP766-CR

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MICHAEL O. STATLER,

DEFENDANT-APPELLANT.

APPEALS from judgments of the circuit court for Rock County:
MICHAEL A. HAAKENSON, Judge. Affirmed.

Before Fitzpatrick, P.J., Kloppenburg and Graham, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
Nos. 2019AP764-CR
2019AP765-CR
2019AP766-CR

¶1 PER CURIAM. Michael Statler appeals judgments of conviction of
the Rock County Circuit Court for eight counts of armed robbery as a party to a
crime.1 See WIS. STAT. §§ 943.32(2) and 939.05 (2017-18).2 Statler asserts that
the circuit court erred, and he was materially prejudiced, because the court
instructed the jury that the court had taken judicial notice of certain facts germane
to the testimony of a witness.3 Specifically, Statler argues that the circuit court
erred because the court instructed the jury that, when a defendant is given
probation as a sentence for a crime, and the defendant is revoked from probation,
the defendant returns to court for sentencing and the defendant can potentially be
sentenced up to the maximum statutory penalty for that crime. We conclude that
the circuit court did not err in giving the judicial notice instruction and affirm.

BACKGROUND

¶2 The following material facts are not disputed.

¶3 In three separate complaints, Statler was charged with eight counts
of armed robbery as a party to a crime. On the State’s motions, the cases were
joined for trial.

¶4 At trial, Anthony Lowery was called as a witness for the State. In a
separate case, Lowery had been charged with two of the same armed robberies

1
We consolidated these appeals on Statler’s motion. See this court’s order of July 11,
2019.
2
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
3
For ease of reading, we will sometimes refer to that instruction as the “judicial notice
instruction.”

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with which Statler was charged. Lowery testified (and the State agreed) that, in
exchange for Lowery’s plea to two felony offenses in his case and his truthful
testimony against Statler at Statler’s trial, the State would recommend that Lowery
be sentenced for those crimes to one year of confinement in the county jail as a
condition of Lowery’s ten years of probation. Lowery also testified that he
participated in several of the same robberies that Statler was charged with, and that
he was informed that Statler participated in the other charged robberies.

¶5 Prior to the conclusion of the trial testimony, the State requested
permission from the circuit court to make the following argument to the jury in
closing: If Lowery is placed on probation based on his pleas to the two felony
offenses, and if Lowery’s probation is later revoked, Lowery will return to court
for sentencing, and Lowery could receive the maximum sentence for each felony
offense. The State contended that this information was germane to Lowery’s
credibility. In order to have an evidentiary basis for that argument, the State asked
the circuit court to take judicial notice of the process regarding possible revocation
of Lowery’s probation and sentencing of Lowery. The circuit court granted the
State’s request over Statler’s objection. The circuit court ruled that the
information the State sought judicial notice of “would assist the jury in
understanding Mr. Lowery’s testimony and specifically his credibility.”

¶6 Pertinent to this appeal, the circuit court instructed the jury as
follows:

The Court has taken judicial notice of certain facts, and
you are directed to accept these facts as being true. In the
State of Wisconsin, the State and the defendant can agree to
resolve a criminal case by making a joint recommendation
to the Court as to what should happen to the defendant.
The Court does not have to follow the recommendation and
it can sentence the defendant to whatever it thinks is

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appropriate up to the maximum penalties prescribed by
law.

If a Court places someone on probation, it can do
that in two ways. First, it can impose a specific sentence up
to the maximum penalty but stay its imposition, which
means the defendant would not have to immediately start
serving that sentence, and then place the defendant on
probation. If the defendant’s probation is later revoked, the
defendant would then automatically start serving the
sentence after the revocation. Or, second, it can …
withhold entering a sentence and place the defendant on
probation. If the defendant is revoked from probation under
this alternative, the defendant would be returned to court
and the Court would sentence them to whatever it believes
up to the maximum penalties.

¶7 During its closing argument, the State took the position that Lowery
was credible, at least in part, due to the potential penalties he faced from his plea
agreement and possible revocation of his probation. The State argued:

It was difficult for [Lowery], but he answered our questions
truthfully. So if we want to present this evidence to you,
we have to do that through Mr. Lowery. I know some of
you were shocked by the offer the State made to Anthony
Lowery, and, again, we’re not condoning his behavior. Not
at all. We make -- we made an offer. We will make that
joint recommendation to the Judge. But as the Judge
instructed you, sentencing is always up to the Judge. And
if the Judge follows the agreement as it’s stated,
Mr. Lowery is going to have two very serious felony
convictions on his -- on his record for the rest of his life.
He’s going to go to jail. He’s 19 years old. He’s going to
spend a year in jail. Most of that jail is going to be while
he’s doing the RECAP program [an intensive rehabilitation
program], which means he’s not going to be out in the
community living. He might be out in the community as a
function of the jail as far as RECAP doing -- depending on
his behavior -- different processes, but he’ll spend every
night in the jail. He’s going to be on probation for ten
years. He’ll be almost 30 when he’s off probation. And
this is a big deal. If he is not able to comply with the rules
that -- at the jail, with the rules of probation, he can come
back before the sentencing Judge and have the full
penalties imposed.

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¶8 Statler’s attorney attacked Lowery’s credibility in closing argument
and stated:

And he’s getting the golden ticket on this. You can look
for the exhibit that tells you what he’s going to get. Based
off of his performance, he’s getting out of this basically
scot free with probation. As long as he incriminates, as you
heard, … Michael Statler.

¶9 The jury found Statler guilty of all charges. Statler appeals. We will
mention other material facts in the following discussion.

DISCUSSION

¶10 Statler contends that his trial defense was materially prejudiced
because the circuit court erred in giving the judicial notice instruction to the jury.
Below, we set forth our standard of review and then address Statler’s arguments.

I. Standard of Review.

¶11 The parties approach the issues in this appeal regarding the judicial
notice instruction as evidentiary questions, and so do we.4 We review a circuit

4
WISCONSIN JI—CRIMINAL 103 states in part:

Evidence is:

First, the sworn testimony of witnesses, both on direct
and cross-examination, regardless of who called the witness.

Second, the exhibits the court has received, whether or
not an exhibit goes to the jury room.

Third, any facts to which the lawyers have agreed or
stipulated or which the court has directed you to find.

(Emphasis added.)

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court’s evidentiary rulings for an erroneous exercise of discretion. State v.
Meehan, 2001 WI App 119, ¶23, 244 Wis. 2d 121, 630 N.W.2d 722. “If a
[circuit] court applies the proper law to the established facts, we will not find a
misuse of discretion if there is any reasonable basis for the [circuit] court’s
ruling.” Id.

II. The Circuit Court Did Not Erroneously Exercise Its Discretion.

¶12 Statler’s arguments focus on the last sentence of the judicial notice
instruction, and we repeat that sentence for clarity: “If the defendant is revoked
from probation … the defendant would be returned to court and the Court would
sentence them to whatever it believes up to the maximum penalties.” Statler does
not contend that the judicial notice instruction is an incorrect statement of
Wisconsin law or that the instruction does not accurately explain the procedure
when a defendant’s probation is revoked. See WIS. STAT. §§ 973.09(1)(a) and
973.10(2) (explaining the procedure for imposing and revoking probation, and that
the defendant has the withheld sentence imposed or is returned to court for
sentencing). Rather, Lowery asserts two separate arguments which we now
discuss.

A. WISCONSIN STAT. § 902.01 is Not Applicable.

¶13 Statler’s first argument is that the pertinent facts judicially noticed
by the circuit court are “adjudicative facts” governed by WIS. STAT. § 902.01, and
the judicial notice instruction does not comply with that statute.5 The State argues
5
WISCONSIN STAT. § 902.01 states:

Judicial notice of adjudicative facts.

(continued)

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that the facts concerning sentencing upon probation revocation are not
“adjudicative facts” but, instead, are “legislative facts” and, as such, the
admissibility of those facts is outside the purview of § 902.01.

¶14 We pause to explain the difference between adjudicative and
legislative facts. “Adjudicative facts are simply the facts of the particular case”
and are generally established through the introduction of evidence. Sisson v.
Hansen Storage Co., 2008 WI App 111, ¶10 n.3, 313 Wis. 2d 411, 756 N.W.2d

(1) SCOPE. This section governs only judicial notice of
adjudicative facts.

(2) KINDS OF FACTS. A judicially noticed fact must be
one not subject to reasonable dispute in that it is any of the
following:

(a) A fact generally known within the territorial
jurisdiction of the trial court.

(b) A fact capable of accurate and ready determination
by resort to sources whose accuracy cannot reasonably be
questioned.

(3) WHEN DISCRETIONARY. A judge or court may take
judicial notice, whether requested or not.

(4) WHEN MANDATORY. A judge or court shall take
judicial notice if requested by a party and supplied with the
necessary information.

(5) OPPORTUNITY TO BE HEARD. A party is entitled
upon timely request to an opportunity to be heard as to the
propriety of taking judicial notice and the tenor of the matter
noticed. In the absence of prior notification, the request may be
made after judicial notice has been taken.

(6) TIME OF TAKING NOTICE. Judicial notice may be
taken at any stage of the proceeding.

(7) INSTRUCTING JURY. The judge shall instruct the
jury to accept as established any facts judicially noticed.

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667 (quoted source omitted). WISCONSIN STAT. § 902.01 “governs only judicial
notice of adjudicative facts.” Sec. 902.01; see Hansen Storage, 313 Wis. 2d 411,
¶10.

¶15 In contrast, legislative facts “do not relate specifically to the
activities or characteristics of the litigants” but are instead “established truths,
facts or pronouncements that do not change from case to case but apply
universally.” State v. Harvey, 2001 WI App 59, ¶7 n.4, 242 Wis. 2d 189, 625
N.W.2d 892, affirmed 2002 WI 93, 254 Wis. 2d 442, 647 N.W.2d 189 (quoting
United States v. Gould, 536 F.2d 216, 218-21 (8th Cir. 1976)). In the context of
this appeal, legislative facts are those facts which help the jury understand
questions of law. See Westring v. James, 71 Wis. 2d 462, 474, 238 N.W.2d 695
(1976). Judicial notice of legislative facts is not controlled by WIS. STAT.
§ 902.01 but is, instead, controlled by common law. See Judicial Council
Committee Notes to § 902.01.

¶16 The State argues that the procedures regarding sentencing after
revocation of probation are legislative facts because those facts are established by
statute. See WIS. STAT. § 973.10(2). Statler does not refute in his reply brief the
State’s argument that the judicially noticed facts in dispute are legislative facts or
that judicial notice of those facts is controlled by common law and not WIS. STAT.
§ 902.01. We therefore take Statler as conceding those points and, as a result,
reject Statler’s first argument. Schlieper v. DNR, 188 Wis. 2d 318, 322, 525
N.W.2d 99 (Ct. App.1994) (stating that a proposition asserted by a respondent on
appeal and not disputed by the appellant’s reply is taken as admitted).

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B. The Judicially Noticed Facts Were Relevant.

¶17 Statler’s second argument is that the circuit court erred in ruling that
the judicially noticed facts were relevant because those facts would assist the jury
in determining Lowery’s credibility. Consistent with that ruling, the circuit court
instructed the jury to “consider whether receiving immunity and concessions
affected” Lowery’s testimony, and that the jury should give Lowery’s testimony
“the weight you believe it is entitled to receive.” However, Statler argues that the
facts in the final sentence of the judicial notice instruction were not relevant to
Lowery’s credibility because there was “no evidence” that Lowery was aware that
he could be sentenced to the maximum penalties for his crimes upon any future
probation revocation. According to Statler, because those challenged judicially
noticed facts were not relevant, it was error for the court to take judicial notice of
those facts, and that error materially prejudiced Statler. We are not persuaded.

¶18 We begin our analysis by noting the very broad language defining
“relevant evidence” in WIS. STAT. § 904.01 which states: “‘Relevant evidence’
means evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable
than it would be without the evidence.” (Emphasis added.) In addition, Statler
concedes, as he must, that evidence concerning the credibility of a witness is
relevant evidence. See State v. Marinez, 2011 WI 12, ¶34, 331 Wis. 2d 568, 797
N.W.2d 399. Further, it was up to the jury to determine Lowery’s credibility and
draw inferences from the evidence. See State v. Maday, 2017 WI 28, ¶¶34, 40,
374 Wis. 2d 164, 892 N.W.2d 611.

¶19 In light of those authorities, Statler’s argument fails. For the last
sentence of the judicial notice instruction to be relevant and admissible, it was not

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necessary to have direct evidence that Lowery knew at the time of trial that he
could receive the maximum sentence if his probation was revoked. Rather, it was
properly left to the jury to infer Lowery’s knowledge (or lack thereof) on that
factual point. The last sentence of the judicial notice instruction was relevant
because, as the circuit court recognized, that language assisted the jury to draw (or
not draw) inferences about Lowery’s knowledge and credibility in its discretion.

¶20 Accordingly, we conclude that the challenged judicially noticed facts
were relevant to Lowery’s credibility, and that the circuit court did not erroneously
exercise its discretion in giving the jury the judicial notice instruction.6

CONCLUSION

¶21 For the foregoing reasons, the judgments of the circuit court are
affirmed.

By the Court.—Judgments affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

6
Because our conclusion that the judicial notice instruction was proper is determinative,
we do no address other arguments raised by the parties. See Sweet v. Berge, 113 Wis. 2d 61, 67,
334 N.W.2d 559 (Ct. App. 1983).

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