State v. Smith

SWANSTROM, Judge Pro Tern,

dissenting:

For the following reasons I respectfully dissent from the above opinion.

Generally, the state’s burden of proving jurisdictional facts is met if the state satisfies the requirements of I.C. § 19-301. The statute provides:

19-301. All offenders liable to punishment. — (1) Jurisdiction — venue. Every person is liable to punishment by the laws of this state, for a public offense committed by him therein, except where it is by law cognizable exclusively in the courts of the United States. Evidence that a prosecutable act was committed within the state of Idaho is a jurisdictional requisite, and proof of such must be shown beyond reasonable doubt.
(2) Venue is nonjurisdictional. Proof that venue is proper under this chapter is satisfied if shown by a preponderance of the evidence. [Emphasis added.]

In the present case the state proved the jurisdictional facts required by the statute. Having done so, it could be argued that the state need produce no further proof of its subject-matter jurisdiction. Indeed, at trial the state contended that it had proved all facts necessary to show that the state had subject-matter jurisdiction and that it had no further burden to prove who maintained the highway. The state cited no authority at the time to support its contention. Later, after the jury returned its verdicts, the state urged the district court to take judicial notice of who maintains U.S. Highway 95 where the accident occurred. Although the failure to take judicial notice is the only issue raised by the state in this appeal, I feel it is necessary to briefly address the earlier argument made by the state asserting a position which has been taken by some other courts but which, until now, has not been taken in Idaho in any case involving an Indian in Indian Country.

Arguably, where a state court has general subject-matter jurisdiction over the crimes charged, and the state has proven that the crimes were committed within the state, the defendant should have the bur*676den to produce evidence of additional facts showing that an exception exists which deprives the state of its general subject-matter jurisdiction. Here, the additional facts which the defendant introduced into evidence were (1) that Smith is an enrolled member of the Nez Perce Indian Tribe and (2) that the crimes were committed within the boundaries of the tribal reservation. These additional facts do not facially establish that the state lacks jurisdiction. The state is not deprived of its general statewide jurisdiction over these crimes merely because they were committed on an Indian reservation by an Indian. Neither the federal government nor the tribe has exclusive jurisdiction over crimes committed on the reservation. Thus, at the conclusion of the trial, the state’s evidence showed that the state had subject-matter jurisdiction; at the same time, all of the evidence taken together did not establish any exception to the state’s general subject-matter jurisdiction. There was no evidence showing that the crimes were committed upon a highway which was not being maintained by the state or one of its political subdivisions. There was simply no evidence as to who maintained U.S. Highway 95 within the boundaries of the reservation.

Under this posture of the proof some courts have held that the state has established its jurisdiction. See, e.g., Pendleton v. State, 103 Nev. 95, 734 P.2d 693, 695 (1987).

The defendant has the burden of showing the applicability of negative exceptions in jurisdictional statutes. State v. Buckaroo Jack, 30 Nev. 325 [96 P. 497] (1908); State v. Mendez, 57 Nev. 192, 209, 61 P.2d 300, 305 (1936). Once the state produces evidence that the crime took place in the county, it is incumbent upon the defendant to prove that the incident took place on lands over which the United States has exclusive jurisdiction. Id. There being no such evidence in the record, we conclude that the courts of this state had jurisdiction to try Pen-dleton.

Accord, State v. Vaughn, 163 Ariz. 200, 786 P.2d 1051 (Ariz.App.1989); People v. Brown, 69 Cal.App.2d 602, 159 P.2d 686 (1945). See also 22 C.J.S. CRIMINAL LAW § 174, Conflicting Federal and State Jurisdiction, p. 212 (1989). If a rule similar to the one applied in Pendleton, Vaughn and Brown were to be applied in the present case, the district court’s ruling at trial — that it had jurisdiction — would have been correct.

In this appeal, however, the state has not made any argument that it had fully met its burden at trial to show state subject-matter jurisdiction. Rather, the state apparently now concedes that in a criminal case involving an “Indian in Indian Country” the state has the burden of proving beyond a reasonable doubt every fact necessary to establish jurisdiction, including the fact that the State maintains U.S. Highway 95 within the boundaries of the Nez Perce Reservation. Indeed, numerous decisions of our Supreme Court suggest that in these circumstances the state will not have the benefit of any presumptions. In State v. McCormack, the Court said:

When addressing issues of state jurisdiction in Indian Country, we are guided by the canon of construction that state and federal legislation passed for the benefit of Indians is to be construed in the Indians’ favor. State v. Major, 111 Idaho 410, 725 P.2d 115 (1986); Sheppard v. Sheppard, 104 Idaho 1, 655 P.2d 895 (1982).... The law is well established that the standard of construction requires this Court to narrowly construe any statutes extending state jurisdiction over Indian Country.

117 Idaho at 1011-12, 793 P.2d at 684-85. See also State v. Major, 111 Idaho 410, 415, 725 P.2d 115, 120 (1986) (The burden of proof is on the state to sustain the jurisdiction of the court over an Indian in Indian country.); State v. Allan, 100 Idaho 918, 920, 607 P.2d 426, 428 (1980) (“Where the jurisdiction of an accused depends upon his status, his status is a question of fact to be determined by the evidence, and the burden of proof is on the government to *677sustain the jurisdiction of the court by evidence.”) 2

These cases primarily involve the construction and interpretation of statutes to determine the perimeters of the state’s jurisdiction in Indian country. Here, the legal perimeters of the state’s jurisdiction are not disputed; rather, this is simply a dispute over how and by whom a jurisdictional fact must be proven. Nevertheless, these Idaho decisions suggest that when the state is asserting its jurisdiction over crimes committed by Indians in Indian Country our Supreme Court will not afford the state any presumption of jurisdiction. To be consistent with McCormack, Major, Sheppard and Allan, supra, the Court will require the state to prove every fact upon which that jurisdiction depends.

Smith also relies on other authority. He argues that although the district court is a court of general jurisdiction throughout the state, in effect the district court becomes a court of limited jurisdiction in respect to crimes committed on an Indian reservation. Here, I.C. § 67-5101 sets these limitations, which cannot be exceeded or ignored. Accordingly, Smith urges us to apply the following rule:

Ordinarily, if a criminal court is one of inferior or limited jurisdiction, the record must affirmatively show such facts as confer jurisdiction of the subject matter and person of accused, and. except as statutes may provide otherwise, no presumption is ordinarily indulged in favor thereof.

22 C.J.S. CRIMINAL LAW § 174, Presumptions, p. 212 (1989).

At trial, the state did not convince the district court that it only had to prove — as it did — that the acts charged occurred on U.S. Highway 95, a “public” highway. Later, after the jury had decided the case and had been discharged and the state was again faced with Smith’s motion for acquittal, the state requested the court to take judicial notice that the state did, in fact, maintain the highway. To support this later request, the state submitted unrebutted documentation and affidavits showing that the state did maintain U.S. Highway 95 throughout the entire state. The court rejected this offer of proof, holding that it came too late and that it deprived Smith of his right to have all material factual issues submitted to the jury.

In part, the court relied upon I.R.E. 201, ruling that because this is a criminal case being tried by a jury, the court was required to instruct the jury that it might, “but is not required to, accept as conclusive any fact judicially noticed.”3 On appeal, *678the state argues that it was error for the district court to rely on I.R.E. 201 in refusing to take judicial notice that U.S. Highway 95 is maintained by the State of Idaho. The state asserts that who maintains U.S. Highway 95 is a “jurisdictional” fact and thus not governed by I.R.E. 201. The state argued that I.R.E. 201 only governs judicial notice of adjudicative facts, which ultimately are to be resolved by a jury, and that the district court improperly relied upon the rule where the significance of jurisdictional facts is a legal issue. The district court ultimately was not persuaded by this argument, and neither am I.

The state also suggests that the issue of taking judicial notice was timely addressed at trial, before the case was given to the jury. That may be true, but not because the state made any timely request for judicial notice to be taken; the record merely shows that the defendant anticipated such a request would be made. As noted, at that time the state was asserting it had no burden to prove additional facts. Moreover, at that time the state provided no legal or factual arguments which indicated the basis for the requested judicial notice, except that U.S. Highway 95 within the Reservation was a “public highway.” On that record the court was correct in announcing that it could not take judicial notice of who was maintaining Highway 95.

Had the state timely made the request and provided the court with readily available information as to maintenance of the highway by the state, the court could have submitted the judicially noticed fact to the jury with proper instructions. Had the court denied the request, the state could have moved to reopen the case to provide evidence on the missing jurisdictional fact. See State v. Huggins, 103 Idaho 422, 648 P.2d 1135 (Ct.App.1982), rev’d on other grounds, 105 Idaho 43, 665 P.2d 1053 (1983). By either of these methods the trial judge would have been able to fulfill his responsibility to protect the rights of the accused and his “equal responsibility to the people of the State to the end that justice is not thwarted by mistake or inadvertence.” State v. Burbank, 156 Me. 269, 163 A.2d 639, 643-644 (1960), as quoted in State v. Cutler, 94 Idaho 295, 486 P.2d 1008 (1971), and in State v. Huggins, 103 Idaho 422, 427, 648 P.2d 1135, 1140 (Ct.App.1982).

The state next argues that subject-matter jurisdiction is a legal issue which was to be decided by the court, not the jury. As noted earlier, this argument was not made to the district court until after the jury trial was finished.4 The state’s argument seems to be that while evidence sufficient to prove facts showing the court’s jurisdiction must appear in the record, “jurisdictional facts” are a concern of the court only, not the jury. Therefore, I.R.E. 201(g) requiring in a criminal case that “the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed” does not apply. See, e.g., United States v. Bowers, 660 F.2d 527 (5th Cir.1981); but compare State v. Willard, 96 Or.App. 219, 772 P.2d 948 (1989) (in a criminal trial without a jury, court took judicial notice of a jurisdictional fact, but this notice was just “evidence” of the fact and did not conclusively establish the fact so as to remove from the prosecution the burden of proving this essential element).

The state also argues that, after the trial, the state showed beyond any dispute that at the time and place in question the state maintained U.S. Highway 95. Because the evidence “conclusively” shows the state maintained the highway, even if I.R.E. 201(g) applies, the state further argues it was harmless error for the court not to submit this factual question to the jury. I am not persuaded by these arguments.

*679For reasons already explained, the state had the burden to prove beyond a reasonable doubt all facts upon which the state’s jurisdiction in this case depends. That the state maintains U.S. Highway 95 within the Nez Perce Indian Reservation is a fact easily proven by the state. Moreover, it is a fact readily established beyond dispute; therefore, it is a fact which could be judicially noted by the court. If faced with a timely request for judicial notice with proper supporting documentation the court would have been on shaky ground to deny the request.

Nevertheless, the missing fact was one essential to conviction of the defendant in the district court. I agree with the district court. The defendant would be deprived of his full constitutional right to a jury trial if the jury were not permitted to find for itself that the fact was proven beyond a reasonable doubt. See, e.g., United States v. Whitehorse, 807 F.2d 1426 (8th Cir.1986); United States v. Johnson, 718 F.2d 1317 (5th Cir.1983). Therefore, if the court were to take judicial notice of the fact, it must be submitted to the jury with a suitable instruction under I.R.E. 201(g). State v. Willard, 96 Or.App. 219, 772 P.2d 948 (1989) (jurisdictional fact judicially noticed in a court trial is not conclusive; in dicta, noting that in a jury trial OEC 201(g)(2) would require an instruction that the jury may, but is not required to, accept as conclusive any fact judicially noticed in favor of the prosecution).

Finally, I disagree with the state’s argument that the failure to submit to the jury the question of who maintained U.S. Highway 95 within the reservation amounted to harmless error. The state has cited no authority to support this argument. The state merely notes that Smith has never contended that some particular agency, other than the state, maintains the highway. The state’s argument in this case is seductive. However, to follow it would, I believe, set a dangerous precedent of allowing any “jurisdictional” fact to be decided by the court in derogation of the right to trial by jury. Accordingly, I cannot find that such an error would be harmless in the present case.

In summary, I would affirm the district court’s order dismissing the case because of the state’s failure to prove subject-matter jurisdiction.

. The most recent case of our Supreme Court involving the enforcement of state criminal laws relating to the operation of motor vehicles on roads within Indian Reservations, specifically within the Nez Perce Indian Reservation, is State v. Snyder, 119 Idaho 376, 807 P.2d 55 (1991). This case, decided three years after the trial in the present case, is cited in the majority opinion. The decision of three Justices in Snyder does represent an interesting departure from the Court’s cautious stance regarding state jurisdiction in McCormack, Major and Allan. However, the significant distinction between Snyder and the cases I rely upon in this opinion, McCormack, Fanning, Michael, Major and Allan, supra, is that only Snyder involves the state prosecution of a non-Indian in Indian Country. Where, as in the present case, the defendant is an Indian, I think that the Court cannot follow Snyder without addressing the concerns expressed therein by Justice Bistline in his dissenting opinion.

. Rule 201. Judicial notice of adjudicative facts. — (a) Scope of rule. This rule governs only judicial notice of adjudicative facts.

(b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the tr.ial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
(c) When discretionary. A court may take judicial notice, whether requested or not.
(d) When mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.
(e) 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.
(f) Time of taking notice. Judicial notice may be taken at any stage of the proceeding.
(g) Instructing jury. In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noted. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept *678as conclusive any fact judicially noticed, [Emphasis added.]

. As noted earlier in this opinion, at trial the judge did say "I know the State of Idaho does have [subject-matter] jurisdiction.” Obviously, he later decided that his personal knowledge was not enough. Presumably, as to venue and jurisdiction, the jury was instructed only that the state had the burden to prove the crimes were committed within Nez Perce County, Idaho. See I.C. § 19-301, supra.